G.R. No.

L-26100 February 28, 1969

CITY OF BAGUlO, REFORESTATION ADMINISTRATION,

FRANCISCO G. JOAQUIN, SR., FRANCISCO G. JOAQUIN, JR., and TERESITA J. BUCHHOLZ petitioners,
vs.
HON. PIO R. MARCOS, Judge of the Court of First Instance of Baguio,
BELONG LUTES, and the HONORABLE COURT OF APPEALS, respondents.

1st Assistant City Fiscal Dionisio C. Claridad, Augusto Tobias and Feria, Feria, Lugtu and La'O for petitioners.
Bernardo C. Ronquillo for respondents.

SANCHEZ, J.:

Petitioners attack the jurisdiction of the Court of First Instance of Baguio to reopen cadastral proceedings under
Republic Act 931. Private petitioner's specifically question the ruling of the Court of Appeals that they have no
personality to oppose reopening. The three-pronged contentions of all the petitioners are: (1) the reopening petition
was filed outside the 40-year period next preceding the approval of Republic Act 931; (2) said petition was not
published; and (3) private petitioners, as lessees of the public land in question, have court standing under Republic
Act 931. The facts follow:

On April 12, 1912, the cadastral proceedings sought to be reopened, Civil Reservation Case No. 1, GLRO Record
No. 211, Baguio Townsite, were instituted by the Director of Lands in the Court of First Instance of Baguio. It is not
disputed that the land here involved (described in Plan Psu-186187) was amongst those declared public lands by
final decision rendered in that case on November 13, 1922.

On July 25, 1961, respondent Belong Lutes petitioned the cadastral court to reopen said Civil Reservation Case No.
1 as to the parcel of land he claims. His prayer was that the land be registered in his name upon the grounds that:
(1) he and his predecessors have been in actual, open, adverse, peaceful and continuous possession and
cultivation of the land since Spanish times, or before July 26, 1894, paying the taxes thereon; and (2) his
predecessors were illiterate Igorots without personal notice of the cadastral proceedings aforestated and were not
able to file their claim to the land in question within the statutory period.

On December 18, 1961, private petitioners Francisco G. Joaquin, Sr., Francisco G. Joaquin, Jr., and Teresita J.
Buchholz registered opposition to the reopening. Ground: They are tree farm lessees upon agreements executed by
the Bureau of Forestry in their favor for 15,395.65 square meters on March. 16, 1959, for 12,108 square meters on
July 24, 1959, and for 14,771 square meters on July 17, 1959, respectively.

On May 5, 1962, the City of Baguio likewise opposed reopening.

On May 8, 1962, upon Lutes' opposition, the cadastral court denied private petitioners' right to intervene in the case
because of a final declaratory relief judgment dated March 9, 1962 in Yaranon vs. Castrillo [Civil Case 946, Court of
First Instance of Baguio] which declared that such tree farm leases were null and void.

On May 18, 1962, private petitioners moved to reconsider. They averred that said declaratory relief judgment did not
bind them, for they were not parties to that action.

On September 14, 1962, the cadastral court reversed its own ruling of May 8, 1962, allowed petitioners to cross-
examine the witnesses of respondent Lutes.

On October 16, 1962, Lutes replied to and moved to dismiss private petitioners' opposition to his reopening petition.
On October 25, 1962, private petitioners' rejoinder was filed.

On August 5, 1963, the cadastral court dismissed private petitioners' opposition to the reopening. A motion to
reconsider was rejected by the court on November 5, 1963.

On January 6, 1964, it was the turn of the City of Baguio to lodge a motion to dismiss the petition to reopen. This
motion was adopted as its own by the Reforestation Administration. They maintained the position that the
declaratory judgment in Civil Case 946 was not binding on those not parties thereto. Respondent Lutes opposed on
February 24, 1964. On April 6, 1964, private petitioners reiterated their motion to dismiss on jurisdictional grounds.

On September 17, 1964, the court denied for lack of merit the City's motion as well as the April 6, 1964 motion to
dismiss made by private petitioners.

On November 13, 1964, all the petitioners went to the Court of Appeals on certiorari, prohibition, and mandamus
with preliminary injunction. 1 They then questioned the cadastral court's jurisdiction over the petition to reopen and
the latter's order of August 5, 1963 dismissing private petitioners' opposition. The appellate court issued a writ of
preliminary injunction upon a P500-bond.

Then came the judgment of the Court of Appeals of September 30, 1965. The court held that petitioners were not
bound by the declaratory judgment heretofore hated. Nevertheless, the appellate court ruled that as lessees, private
petitioners had no right to oppose the reopening of the cadastral case. Petitioners moved to reconsider. It was
thwarted on May 6, 1966.

Petitioners now seek redress from this Court. On July 6, 1966, respondents moved to dismiss the petition before us.
On August 5, 1966, petitioners opposed. On August 12, 1966, we gave due course.

1. Do private petitioners have personality to appear in the reopening proceedings?

First, to the controlling statute, Republic Act 931, effective June 20, 1953.

The title of the Act reads —

AN ACT TO AUTHORIZE THE FILING IN THE PROPER COURT, UNDER CERTAIN CONDITIONS, OF CERTAIN
CLAIMS OF TITLE TO PARCELS OF LAND THAT HAVE BEEN DECLARED PUBLIC LAND, BY VIRTUE OF
JUDICIAL DECISIONS RENDERED WITHIN THE FORTY YEARS NEXT PRECEDING THE APPROVAL OF THIS
ACT.

Section 1 thereof provides —

SECTION 1. All persons claiming title to parcels of land that have been the object of cadastral proceedings,
who at the time of the survey were in actual possession of the same, but for some justifiable reason had
been unable to file their claim in the proper court during the time limit established by law, in case such
parcels of land, on account of their failure to file such claims, have been, or are about to be declared land of
the public domain by virtue of judicial proceedings instituted within the forty years next preceding the
approval of this Act, are hereby granted the right within five years 2 after the date on which this Act shall take effect, to petition
for a reopening of the judicial proceedings under the provisions of Act Numbered Twenty-two hundred and fifty-nine, as amended, only with respect to
such of said parcels of land as have not been alienated, reserved, leased, granted, or otherwise provisionally or permanently disposed of by the
Government, and the competent Court of First Instance, upon receiving such petition, shall notify the Government through the Solicitor General, and if
after hearing the parties, said court shall find that all conditions herein established have been complied with, and that all taxes, interests and penalties
thereof have been paid from the time when land tax should have been collected until the day when the motion is presented, it shall order said judicial
proceedings reopened as if no action has been taken on such parcels. 3

We concede that in Leyva vs. Jandoc, L-16965, February 28, 1962, a land registration case where oppositors were
"foreshore lessees of public land", a principle was hammered out that although Section 34, Land Registration
Act, 4 "apparently authorizes any person claiming any kind of interest to file an opposition to an application for
registration, ... nevertheless ... the opposition must be based on a right of dominion or some other real right
independent of, and not at all subordinate to, the rights of the Government." 5 The opposition, according to
the Leyva decision, "must necessarily be predicated upon the property in question being part of the public
domain." Leyva thus pronounced that "it is incumbent upon the duly authorized representatives of the Government
to represent its interests as well as private claims intrinsically dependent upon it."

But the Leyva case concerned an ordinary land registration proceeding under the provisions of the Land
Registration Act. Normally and logically, lessees cannot there present issues of ownership. The case at bar,
however, stands on a different footing. It involves a special statute R.A. 931, which allows a petition for reopening on
lands "about to be declared" or already "declared land of the public domain" by virtue of judicial proceedings. Such
right, however, is made to cover limited cases, i.e., "only with respect to such of said parcels of land as have not
been alienated, reserved, leased, granted, or otherwise provisionally or permanently disposed of by the
Government." 6 The lessee's right is thus impliedly recognized by R.A. 931. This statutory phrase steers the present
case clear from the impact of the precept forged by Leyva. So it is, that if the land subject of a petition to reopen has
already been leased by the government, that petition can no longer prosper.

This was the holding in Director of Land vs. Benitez, L-21368, March 31, 1966. The reopening petition there filed
was opposed by the Director of Lands in behalf of 62 lessees of public land holding revocable permits issued by the
government. We struck down the petition in that Case because the public land, subject-matter of the suit, had
already been leased by the government to private persons.

Of course, the Benitez ruling came about not by representations of the lessees alone, but through the Director of
Lands. But we may well scale the heights of injustice or abet violations of R.A. 931 if we entertain the view that only
the Director of Lands 7 can here properly oppose the reopening petition. Suppose the lands office fails to do so? Will
legitimate lessees be left at the mercy of government officials? Should the cadastral court close its eyes to
the fact of lease that may be proved by the lessees themselves, and which is enough to bar the reopening petition?
R.A. 931 could not have intended that this situation should happen. The point is that, with the fact of lease, no
question of ownership need be inquired into pursuant to R.A. 931. From this standpoint, lessees have sufficient legal
interest in the proceedings.

The right of private petitioners to oppose a reopening petition here becomes the more patent when we take stock of
their averment that they have introduced improvements on the land affected. It would seem to us that lesseesinsofar
as R.A. 931 is concerned, come within the purview of those who, according to the Rules of Court, 8 may intervene in
an action. For, they are persons who have "legal interest in the matter in litigation, or in the success of either of the
parties." 9 In the event herein private petitioners are able to show that they are legitimate lessees, then their
lease will continue. And this because it is sufficient that it be proven that the land is leased to withdraw it from the
operation of Republic Act 931 and place it beyond the reach of a petition for reopening. 10

In line with the Court of Appeals' conclusion, not disputed by respondent Lutes herein, the cadastral court should
have ruled on the validity of private petitioners 'tree farm leases — on the merits. Because there is need for Lutes'
right to reopen and petitioners' right to continue as lessees to be threshed out in that court.

We, accordingly, hold that private petitioners, who aver that they are lessees, have the necessary personality to
intervene in and oppose respondent Lutes' petition for reopening.

2. Petitioners next contend that the reopening petition below, filed under R.A. 931, should have been published in
accordance with the Cadastral Act.

To resolve this contention, we need but refer to a very recent decision of this Court in De Castro vs. Marcos, supra,
involving exactly the same set of facts bearing upon the question. We there held, after a discussion of law and
jurisprudence, that: "In sum, the subject matter of the petition for reopening — a parcel of land claimed by
respondent Akia — was already embraced in the cadastral proceedings filed by the Director of Lands.
Consequently, the Baguio cadastral court already acquired jurisdiction over the said property. The petition, therefore,
need not be published." We find no reason to break away from such conclusion.

Respondent Lutes attached to the record a certified true copy of the November 13, 1922 decision in the Baguio
Townsite Reservation case to show, amongst others, that the land here involved was part of that case. Petitioners
do not take issue with respondent Lutes on this point of fact.

We here reiterate our ruling in De Castro, supra, that the power of the cadastral court below over petitions to
reopen, as in this case, is not jurisdictionally tainted by want of publication.

3. A question of transcendental importance is this: Does the cadastral court have power to reopen the cadastral
proceedings upon the application of respondent Lutes?

The facts are: The cadastral proceedings sought to be reopened were instituted on April 12, 1912. Final decision
was rendered on November 13, 1922. Lutes filed the petition to reopen on July 25, 1961.
It will be noted that the title of R.A. 931, heretofore transcribed, authorizes "the filing in the proper court, under
certain conditions, of certain claims of title to parcels of land that have been declared public land, by virtue of judicial
decisions rendered within the forty years next preceding the approval of this Act." The body of the statute, however,
in its Section 1, speaks of parcels of land that "have been, or are about to be declared land of the public domain, by
virtue of judicial proceedings instituted within the forty years next preceding the approval of this Act." There thus
appears to be a seeming inconsistency between title and body.

It must be stressed at this point that R.A. 931 is not under siege on constitutional grounds. No charge has been
made hero or in the courts below that the statute offends the constitutional injunction that the subject of legislation
must be expressed in the title thereof. Well-entrenched in constitutional law is the precept that constitutional
questions will not be entertained by courts unless they are "specifically raised, insisted upon and adequately
argued." 11 At any rate it cannot be seriously disputed that the subject of R.A. 931 is expressed in its title.

This narrows our problem down to one of legal hermeneutics.

Many are the principles evolved in the interpretation of laws. It is thus not difficult to stray away from the true path of
construction, unless we constantly bear in mind the goal we seek. The office of statutory interpretation, let us not for
a moment forget, is to determine legislative intent. In the words of a well-known authority, "[t]he true object of all
interpretation is to ascertain the meaning and will of the law-making body, to the end that it may be enforced." 12 In
varying language, "the, purpose of all rules or maxims" in interpretation "is to discover the true intention of the
law." 13 They "are only valuable when they subserve this purpose." 14 In fact, "the spirit or intention of a statute
prevails over the letter thereof." 15 A statute "should be construed according to its spirit and reason, disregarding as
far as necessary, the letter of the law." 16 By this, we do not "correct the act of the Legislature, but rather ... carry out
and give due course to" its true intent. 17

It should be certain by now that when engaged in the task of construing an obscure expression in the law 18 or where
exact or literal rendering of the words would not carry out the legislative intent, 19 the title thereof may be resorted to
in the ascertainment of congressional will. Reason therefor is that the title of the law may properly be regarded as an
index of or clue or guide to legislative intention. 20 This is especially true in this jurisdiction. For the reason that by
specific constitutional precept, "[n]o bill which may be enacted into law shall embrace more than one subject which
shall be expressed in the title of the bill." 21 In such case, courts "are compelled by the Constitution to consider both
the body and the title in order to arrive at the legislative intention." 22

With the foregoing guideposts on hand, let us go back to the situation that confronts us. We take another look at the
title of R.A. 931, viz: "AN ACT TO AUTHORIZE THE FILING IN THE PROPER COURT, UNDER CERTAIN
CONDITIONS, OF CERTAIN CLAIMS OF TITLE TO PARCELS OF LAND THAT HAVE BEEN DECLARED PUBLIC
LAND, BY VIRTUE OF JUDICIAL DECISIONS RENDERED WITHIN THE FORTY YEARS NEXT PRECEDING THE
APPROVAL OF THIS ACT." Readily to be noted is that the title is not merely composed of catchwords. 23 It
expresses in language clear the very substance of the law itself. From this, it is easy to see that Congress intended
to give some effect to the title of R.A. 931.

To be carefully noted is that the same imperfection in the language of R.A. 931 aforesaid — from which surfaces a
seeming inconsistency between the title and the body — attended Commonwealth Act 276, the present statute's
predecessor. That prior law used the very same language in the body thereof and in its title. We attach meaning to
this circumstance. Had the legislature meant to shake off any legal effects that the title of the statute might have, it
had a chance to do so in the reenactment of the law. Congress could have altered with great facility the wording of
the title of R.A. 931. The fact is that it did not.

It has been observed that "in modern practice the title is adopted by the Legislature, more thoroughly read than the
act itself, and in many states is the subject of constitutional regulation." 24 The constitutional in jurisdiction that the
subject of the statute must be expressed in the title of the bill, breathes the spirit of command because "the
Constitution does not exact of Congress the obligation to read during its deliberations the entire text of the
bill." 25Reliance, therefore, may be placed on the title of a bill, which, while not an enacting part, no doubt "is in some
sort a part of the act, although only a formal part." 26 These considerations are all the more valid here because R.A.
931 was passed without benefit of congressional debate in the House from which it originated as House Bill
1410, 27 and in the Senate. 28
The title now under scrutiny possesses the strength of clarity and positiveness. It recites that it authorizes court
proceedings of claims to parcels of land declared public land "by virtue of judicial decisions rendered within the forty
years next preceding the approval of this Act." That title is written "in capital letters" — by Congress itself; such kind
of a title then "is not to be classed with words or titles used by compilers of statutes" because "it is the legislature
speaking." 29 Accordingly, it is not hard to come to a deduction that the phrase last quoted from R.A. 931 — "by virtue
of judicial decisions rendered" — was but inadvertently omitted from the body. Parting from this premise, there is, at
bottom, no contradiction between title and body. In line with views herein stated, the title belongs to that type of titles
which; should be regarded as part of the rules or provisions expressed in the body. 30At the very least, the words "by
virtue of judicial decisions rendered" in the title of the law stand in equal importance to the phrase in Section 1
thereof, "by virtue of judicial proceedings instituted."

Given the fact then that there are two phrases to consider the choice of construction we must give to the statute
does not need such reflection. We lean towards a liberal view. And this, because of the principle long accepted that
remedial legislation should receive the blessings of liberal construction. 31 And, there should be no quibbling as to the
fact that R.A. 931 is a piece of remedial legislation. In essence, it provides a mode of relief to landowners who,
before the Act, had no legal means of perfecting their titles. This is plainly evident from the explanatory note thereof,
which reads:

This bill is intended to give an opportunity to any person or claimant who has any interest in any parcel of
land which has been declared as public land in cadastral proceeding for failure of said person or claimant to
present his claim within the time prescribed by law.

There are many meritorious cases wherein claimants to certain parcels of land have not had the opportunity
to answer or appear at the hearing of cases affecting their claims in the corresponding cadastral
proceedings for lack of sufficient notice or for other reasons and circumstances which are beyond their
control. Under C.A. No. 276, said persons or claimants have no more legal remedy as the effectivity of said
Act expired in 1940.

This measure seeks to remedy the lack of any existing law within said persons or claimants with meritorious
claims or interests in parcels of land may seek justice and protection. This bill proposes to give said persons
or claimants their day in court. Approval of this bill is earnestly requested.

In fine, we say that lingual imperfections in the drafting of a statute should never be permitted to hamstring judicial
search for legislative intent, which can otherwise be discovered. Legal technicalities should not abort the beneficent
effects intended by legislation.

The sum of all the foregoing is that, as we now view Republic Act 931, claims of title that may be filed thereunder
embrace those parcels of land that have been declared public land "by virtue of judicial decisions rendered within
the forty years next preceding the approval of this Act." Therefore, by that statute, the July 25, 1961 petition of
respondent Belong Lutes to reopen Civil Reservation Case No. 1, GLRO Record No. 211 of the cadastral court of
Baguio, the decision on which was rendered on November 13, 1922, comes within the 40-year period. lawphi1 .nêt

FOR THE REASONS GIVEN, the petition for certiorari is hereby granted; the cadastral court's orders of August 5,
1963, November 5, 1963 and September 17, 1964 are hereby declared null and void and the cadastral court is
hereby directed to admit petitioners' oppositions and proceed accordingly. No costs. So ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Barredo, JJ., concur.
Concepcion, C.J., Castro and Capistrano, JJ., took no part..
G.R. No. L-40902 February 18, 1976

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF MANILA, BRANCH VII, and
JOSEFA PESIMO, respondents.

Jose L. Gamboa, Jose D. Cajucom & Emilio Llamanzares, City Fiscal's Office, Manila for petitioner.

MARTIN, J.:

This is a question of concurrent jurisdiction between a court of first instance and a city court in the trial of a criminal
indictment where the penalty provided for by law is imprisonment of not less than one (1) month nor more than six
(6) months or a fine of not less than P200.00 nor more than P500.00, or both, in the discretion of the court.

On May 9, 1975, the City Fiscal of Manila charged private respondent Josefa Pesimo before the respondent Court
of First Instance of Manila for violation of Section 16, Act 3753, otherwise known as the "Civil Register Law "1 in that:

(O)n or about January 20, 1969, in the City of Manila, Philippines, the said accused did then and
there wilfully, unlawfully, feloniously and knowingly make false statements in the Certificate of Birth of
her son, CARLOS PESIMO CUCUECO, JR., who was born on said date, which Certificate of Live
Birth was presented for in the Civil Registrar, this City, by then and there making it appear, as it did
appear, that her said son is her legitimate child with one CARLOS LAYUG CUCUECO and that said
accused was married to said Carlos Layug Cucueco on April 3, 1962, at San Jose, Camarines Sur,
the said accused well knowing the same to be false and untrue as she has never been married to
the former and that Carlos Pesimo Cucueco, Jr., is not their legitimate child.

This criminal act is punishable with imprisonment of not less than one (1) month nor more than six (6) months or a
fine of not less than P200.00 nor more than P500.00, or both, in the discretion of the court.

On May 26, 1975, respondent court dismissed the case ex mere motu for the reason that the offense complained of
does not come within the perimeter of its jurisdiction. Respondent court maintains that the prescribed penalty of one
(1) month to six (6) months imprisonment is below the floor limit of its original jurisdiction in criminal cases, since the
said jurisdiction starts only from those offenses where the penalty of imprisonment, in particular, exceeds six (6)
months. Because of this, jurisdiction belongs exclusively to the City Court of Manila which has the competence to
impose the penalty of imprisonment and fine, alternatively or jointly.

The People moved for a reconsideration of the dismissal order, but the respondent court denied the motion in its
Order of June 10, 1975.

Forthwith, petitioner elevated the matter to Us thru this present petition for review on certiorari.

We find the petition to be meritorious.

1. Section 44 (f) of the Judiciary Act of 1948, as amended, provides that Courts of First Instance shall have original
jurisdiction "(i)n all criminal cases in which the penalty provided by law is imprisonment for more than six months, or
a fine of more than two hundred pesos." On the other hand, Section 87 (c) of the same Act confers on municipal
courts original jurisdiction to try "offenses in which the penalty provided by law is imprisonment for not more than
three years, or a fine of not more than three hundred pesos, or both such fine and imprisonment" except violations
of election laws. The same section provides that municipal courts of provincial capitals and city courts "shall have
like jurisdiction as the Court of First Instance to try parties charged with an offense committed within their respective
jurisdictions, in which the penalty provided by law does not exceed prision correcional or imprisonment for not more
than six years or fine not exceeding six thousand pesos or both." These quoted statutory provisions plainly import
that the exclusive jurisdiction of municipal courts in criminal cases, which is commonly shared by city courts and
municipal courts of the provincial capitals, covers only those offenses where the penalty prescribed by law
does not exceed six (6) months imprisonment or two hundred pesos fine. The moment the penalty for the offense
exceeds 6-month imprisonment or P200 fine, jurisdiction inevitably becomes concurrent with the courts of first
instance: for municipal courts, up to those offenses punishable with three (8) years imprisonment or P3,000.00 fine;
and for city courts and municipal courts of provincial capitals, up to those offense with penalty of six (6) years
imprisonment or P6,000.00 fine. As the Court ruled in Esperat v. Avila, 2 "... the exclusive original jurisdiction of the
justice of the peace and municipal courts is confined only to cases where the prescribed penalty is imprisonment for 6
months or less, or fine of P200.00 or less, whereas, the exclusive original jurisdiction of the court of first instance covers
cases where the penalty is incarceration for more than three (3) years (or 6 years in the case of city courts and municipal
courts in provincial capitals), or fine for more than P3,000.00 (or P6,000.00 in proper cases), or both such imprisonment
and fine. Between these exclusive jurisdictions lies a zone where the jurisdiction is concurrent." Section 44 (f) reveals no
inconsistency with Section 87 (c). These two sections can stand together and can be given "conjoint, not discordant,
effect. 3 There is no constitutional impediment to the conferment on courts of different levels of concurrent jurisdiction over
the same offense or offenses. 4 The amendment of Section 87 (c) of Republic Act No. 3828 in 1963, enlarging the original
jurisdiction of municipal and city courts assumingly to lighten the burden of the courts of first instance, was not meant to
obliterate the concurrent criminal jurisdiction of the courts of first instance under Section 44 (f) whenever the offense is
penalized with imprisonment for more than six months or a fine of more than 200 pesos. 5 That notwithstanding, the
jurisdiction of the courts of first instance remains the same, although an area was left where said jurisdiction is to be
exercised concurrently with the inferior courts. 6 With respect to the eleven (11) offenses enumerated in Section 87
(c), 7 the jurisdiction of the municipal and city courts is co-extensive with that of the courts of first instance. 8Said Section
87 (c) cannot be construed as conferring exclusive original jurisdiction on judges of municipal and city courts over these
specified cases without nullifying pro tanto Section 44 (f). 9 At most, the exclusive original jurisdiction of the municipal and
city courts over the same obtains only when the imposable penalty does not exceed 6 months imprisonment or P200 fine.

2. The respondent court erred in disclaiming jurisdiction over the case for the expedient reason that the penalty of
imprisonment prescribed by law for the offense charged reaches only the maximum of six (6) months. It must be
observed that imprisonment is not the sole penalty for the crime charged. There is also the alternative penalty of fine
not less than P200.00 nor more than P500.00. This penalty of fine alone sufficiently brings the offense charged
within the jurisdictional range of the court of first instance, since the jurisdiction of said court originates "(i)n all
criminal cases in which the penalty provided by law is ... a fine of more than two hundred pesos." More over, the
violated law allows the imposition of both imprisonment and fine, or arresto mayor and fine not exceeding P500.00,
a clear source from which the court of first instance could validly draw authority to take cognizance of the case. As
the Court held in Esperat v. Avila, "(s)ince the crime of grave coercion is punishable with arresto
mayor (imprisonment from on month and one day to six months) and fine not exceeding P500.00, said offense
comes within the area of concurrent jurisdiction of municipal or city courts and court of first instance. 10 In said case,
the jurisdiction becomes concurrent because the fine exceeds P200. It is a fundamental rule that the jurisdiction of a court
is determined by the amount of fine and imprisonment. 11 If the crime charged is penalized with imprisonment not
exceeding six months or a fine not more than P200.00, the municipal court has original jurisdiction; otherwise it is the
court of first instance. 12

Respondent court further refused jurisdiction because the discretion afforded it under the law, i.e., to impose the
penalty imprisonment, or fine, or both, cannot be exercised by it, since the Penalty of imprisonment "is basically
below its jurisdictional reach." Respondent court's thesis suffers from a congenital failure to properly seize the issue
involved. The issue here is one of jurisdiction, of a court's legal competence to try a case ab origene. In criminal
prosecutions, it is settled that the jurisdiction of the court is not determined by what may be meted out to the
offender after trial 13 or even by the result of the evidence that would be presented at the trial, 14 but by the extent of the
penalty which the law imposes for the misdemeanor, crime or violation charged in the complaint. If the facts recited in the
complaint and the punishment provided for by law are sufficient to show that the court in which the complaint is presented
has jurisdiction, that court must assume jurisdiction. 15

3. There is no question that the fine ranging from P200 to P500 prescribed by Section 16 of Act 3753, Civil Register
Law, for the violation charged enters the realm of jurisdiction of the respondent court of first instance which, inter
alia, originates from those offenses punishable with a fine exceeding P200.00. nonetheless, the jurisdiction is
concurrent with the municipal and city courts, so that, the filing of the information against private respondent with the
respondent Court of First Instance vested authority in the latter court to retain and try the same. 16 It is an axiom in
procedural law that where several courts have concurrent jurisdiction over the same offense, the court which first
acquires. jurisdiction of the prosecution retains it to the exclusion of the others. 17
ACCORDINGLY, the orders subject matter of this petition are hereby reversed and set aside, and the case ordered
remanded to the court a quo with instructions to proceed with tile trial on the merits, after arraignment of the
accused.

No pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Esguerra and Muñoz Palma, JJ., concur.

G.R. No. L-47757-61 January 28, 1980

THE PEOPLE OF THE PHILIPPINES, ABUNDIO R. ELLO, As 4th Assistant of Provincial Bohol VICENTE DE
LA SERNA. JR., as complainant all private prosecutor, petitioners,
vs.
HON. VICENTE B. ECHAVES, JR., as Judge of the Court of First Instance of Bohol Branch II, ANO
DACULLO, GERONIMO OROYAN, MARIO APARICI, RUPERTO CAJES and MODESTO S
SUELLO,respondents.

AQUINO, J.:p

The legal issue in this case is whether Presidential Decree No. 772, which penalizes squatting and similar acts,
applies to agricultural lands. The decree (which took effect on August 20, 1975) provides:

SECTION 1. Any person who, with the use of force, intimidation or threat, or taking advantage of the
absence or tolerance of the landowner, succeeds in occupying or possessing the property of the
latter against his will for residential, commercial or any other purposes, shall be punished by an
imprisonment ranging from six months to one year or a fine of not less than one thousand nor more
than five thousand pesos at the discretion of the court, with subsidiary imprisonment in case of
insolvency. (2nd paragraph is omitted.)

The record shows that on October 25, 1977 Fiscal Abundio R. Ello filed with the lower court separate informations
against sixteen persons charging them with squatting as penalized by Presidential Decree No. 772. The information
against Mario Aparici which is similar to the other fifteen informations, reads:

That sometime in the year 1974 continuously up to the present at barangay Magsaysay, municipality
of Talibon, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with stealth and strategy, enter into, occupy and cultivate a portion of a
grazing land physically occupied, possessed and claimed by Atty. Vicente de la Serna, Jr. as
successor to the pasture applicant Celestino de la Serna of Pasture Lease Application No. 8919,
accused's entrance into the area has been and is still against the win of the offended party; did then
and there willfully, unlawfully, and feloniously squat and cultivate a portion of the said grazing land;
said cultivating has rendered a nuisance to and has deprived the pasture applicant from the full use
thereof for which the land applied for has been intended, that is preventing applicant's cattle from
grazing the whole area, thereby causing damage and prejudice to the said applicant-possessor-
occupant, Atty. Vicente de la Serna, Jr. (sic)

Five of the informations, wherein Ano Dacullo, Geronimo Oroyan, Mario Aparici, Ruperto Cajes and Modesto Suello
were the accused, were raffled to Judge Vicente B. Echaves, Jr. of Branch II (Criminal Cases Nos. 1824, 1828,
1832, 1833 and 1839, respectively).

Before the accused could be arraigned, Judge Echaves motu proprio issued an omnibus order dated December 9,
1977 dismissing the five informations on the grounds (1) that it was alleged that the accused entered the land
through "stealth and strategy", whereas under the decree the entry should be effected "with the use of force,
intimidation or threat, or taking advantage of the absence or tolerance of the landowner", and (2) that under the rule
of ejusdem generis the decree does not apply to the cultivation of a grazing land.

Because of that order, the fiscal amended the informations by using in lieu of "stealth and strategy" the expression
"with threat, and taking advantage of the absence of the ranchowner and/or tolerance of the said ranchowner". The
fiscal asked that the dismissal order be reconsidered and that the amended informations be admitted.
The lower court denied the motion. It insisted that the phrase "and for other purposes" in the decree does not
include agricultural purposes because its preamble does not mention the Secretary of Agriculture and makes
reference to the affluent class.

From the order of dismissal, the fiscal appealed to this Court under Republic Act No. 5440. The appeal is devoid of
merit.

We hold that the lower court correctly ruled that the decree does not apply to pasture lands because its preamble
shows that it was intended to apply to squatting in urban communities or more particularly to illegal constructions in
squatter areas made by well-to-do individuals. The squating complained of involves pasture lands in rural areas.

The preamble of the decree is quoted below:

WHEREAS, it came to my knowledge that despite the issuance of Letter of Instruction No. 19 dated
October 2, 1972, directing the Secretaries of National Defense, Public Work. 9 and communications,
Social Welfare and the Director of Public Works, the PHHC General Manager, the Presidential
Assistant on Housing and Rehabilitation Agency, Governors, City and Municipal Mayors, and City
and District Engineers, "to remove an illegal constructions including buildings on and along esteros
and river banks, those along railroad tracks and those built without permits on public and private
property." squatting is still a major problem in urban communities all over the country;

WHEREAS, many persons or entities found to have been unlawfully occupying public and private
lands belong to the affluent class;

WHEREAS, there is a need to further intensify the government's drive against this illegal and
nefarious practice.

It should be stressed that Letter of Instruction No. 19 refers to illegal constructions on public and private property. It
is complemented by Letter of Instruction No. 19-A which provides for the relocation of squatters in the interest of
public health, safety and peace and order.

On the other hand, it should be noted that squatting on public agricultural lands, like the grazing lands involved in
this case, is punished by Republic Act No. 947 which makes it unlawful for any person, corporation or association to
forcibly enter or occupy public agricultural lands. That law provides:

SECTION 1. It shall be unlawful for any person corporation or association to enter or occupy,
through force, intimidation, threat, strategy or stealth, any public agriculture land including such
public lands as are granted to private individuals under the provision of the Public Land Act or any
other laws providing for the of public agriculture lands in the Philippines and are duly covered by the
corresponding applications for the notwithstanding standing the fact that title thereto still remains in
the Government or for any person, natural or judicial to investigate induce or force another to commit
such acts.

Violations of the law are punished by a fine of not exceeding one thousand or imprisonment for not more than one
year, or both such fine and imprisonment in the discretion of the court, with subsidiary imprisonment in case of
insolvency. (See People vs. Lapasaran 100 Phil. 40.)

The rule of ejusdem generis (of the same kind or species) invoked by the trial court does not apply to this case.
Here, the intent of the decree is unmistakable. It is intended to apply only to urban communities, particularly to illegal
constructions. The rule of ejusdem generis is merely a tool of statutory construction which is resorted to when the
legislative intent is uncertain (Genato Commercial Corp. vs. Court of Tax Appeals, 104 Phil. 615,618; 28 C.J.S.
1049-50).

WHEREFORE, the trial court's order of dismissal is affirmed. No costs.

SO ORDERED.
Barredo, Antonio, Concepcion Jr. and Abad Santos, J., concur.
G.R. No. L-7747 November 29, 1955

NIEVES TINIO, ET AL., plaintiffs-appellants,

vs.
GREGORIO FRANCES, ET AL., defendants and appellees.

Pedro D. Maldia for appellants.

Godofredo V. Salamanca for appellees.

LABRADOR, J.:

This action was brought by the heirs of the deceased Sergio Nicolas to annul the sale of a homestead which had
been inherited by them from said decedent. Sergio Nicolas applied for a parcel of land containing an area of
10.0709 hectares, more or less, in San Fabian, Santo Domingo, Nueva Ecija in the year 1917. His application was
approved on June 22, 1917. He filed the corresponding final proof papers in relation to the homestead and on June
15, 1943 the said final proof was approved by the Director of Lands, who thereupon ordered the issuance of a
patent in his favor. (Exhibit A.) At the time of the issuance of the above order, Sergio Nicolas had already died, so
the order directs the issuance of the patent to his heirs, represented by his widow. In or about the year 1947 the
heirs transferred their rights to the homestead to the defendants. The above transfers were approved by the
Secretary of Agriculture and Commerce on March 9, 1948 and thereafter the defendants secured the issuance of a
homestead patent in their favor. Original Certificate of Title No. P-558 has been issued also in their favor, covering
the said parcel of land.

The present action was commenced on April 27, 1953 to annul the conveyances executed by plaintiffs to defendants
and to recover the land, together with the fruits of the land received by the defendants, as damages. The defendants
alleged the execution of the sales in their favor. After the issues had been joined the parties presented an agreed
statement of facts, the most pertinent parts of which have already been set forth above. The trial court held that the
transfer or conveyance of the homestead made by the heirs of the original homesteader was a mere transfer of the
rights of the original homesteader to the land authorized under the provisions of Section 20 of the Public Land Act
(A. A. 141); therefore, as it was approved by the Secretary of Agriculture and Commerce, the conveyance was valid.
It held that section 118 of the Public Land Act is not applicable; that both Section 20 and Section 118 being
apparently conflicting, they should be reconciled subh that the prohibition contained in section 118 should be made
to apply only if the patent had already been issued, otherwise section 20 would be absolutely useless. Against this
judgment the appeal was prosecuted in this Court.The provisions which affect the conveyance sought to be annulled
are as follows:

SEC. 20. If at any time after the approval of the application and before patent is issued the applicant shall
prove to the satisfaction of the Director of Lands that he has complied with all the requirements of the law,
but cannot continue with his homestead, through no fault of his own, and there is a bona fide purchaser for
the rights and improvements of the applicant on the land, and that the conveyance is not made for purposes
of speculation, then the applicant, with the previous approval of the Secretary of Agriculture and Commerce,
may transfer his rights to the land and improvements to any person legally qualified to apply for a
homestead, and immediately after such transfer, the purchaser shall file a homestead application to the land
so acquired and shall succeed the original homesteader in his rights and obligations beginning with the date
of the approval of said application of the purchaser. Any person who has so transferred his rights may not
agan apply for a new homestead. Every transfer made without the previous approval of the Secretary of
Agriculture and Commerce shall be null and void and shall result in the cancellation of the entry and the
refusal of the patent. (C. A. 141).

SEC. 118. Except in favor of the Government or any of its branches, units, or institutions, lands acquired
under free patentor homestead provisions shall not be subject to encumbrance or alienation from the date of
the approval of the application and for a term of five years from and after the date of the issuance of the
patent or grant, nor shall they become liable to the satisfaction of any debt contracted prior to the expiration
of said period, but the improvements or crop on the land may be mortgaged or pledged to qualified persons,
associations, or corporations.
 No alienation, transfer, or conveyance of any homestead after five years and before twenty-five years after
issuance of title shall be valid without the approval of the Secretary of Agriculture and Commerce, which
approval shall not be denied except on constitutional and legal grounds. (Id.).

The legislative policy or intent is to conserve the land which a homesteader has acquired under the Public Land
Law, as above stated, for him and his heirs. The legislative policy is so strone and consistent that the original period
of five years from the issuance of the patent, within which period conveyance or sale thereof by the homesteader or
his heirs was prohibited (section 116 of Act No. 2874) is now extended to 25 years if no approval of the Secretary of
Agriculture and Commerce is secured. (Sec. 118, par. 2, C. a. No. 141, as amended by C. A. No. 456.) Provision
has also been inserted authorizing the repurchase of the homestead when properly sold by the homesteader within
five years from the date of the sale. (Sec. 119, C. A. No. 141.) This legislative intent and policy is also sought to be
carried out in Section 20, as may be seen from the fact that transfer of homestead rights from a homesteader can
only be justified upon proof satisfactory to the Director of Lands that the homesteader cannot continue with his
homestead through no fault of his own. This is not the only requirement; a previous permission of the Secretary of
Agriculture and Commerce should first be obtained, as it is also expressly provided that any transfer made without
such previous approval is null and void and shall result in the cancellation of the entry and the refusal of the patent."
(C. A. 141). As the conveyances now in question are claimed to have been and were evidently made under the
provisions of section 20 of the Public Land Act, the important question to be determined is whether said
conveyances satisfy requirements of said section 20 of the Act.

The stipulation of facts on this point is as follows:

That the heirs of Sergio Nicolas executed in or about 1947 a transfer of homestead rights over the land in
question in favor of the defendants, which transfer was approved by the Secretary of Agriculture and
Commerce on March 9, 1948; that with the approval of said transger of homestead rights, the defendants
caused the issuance of a homestead patent in their favor, the title being evidenced by Original Certificate of
Title No. P-558 of the land records of Nueva Ecija.

The above stipulation does not state expressly that the Director of Lands had, after investigation, been satisfied that
the applicant or homesteader "has complied with all the requirements of the law, but cannot continue with the
homestead through no fault of his own." Furthermore, according to the stipulation, the transfer was made in 1947
and approved by the Secretary of Agriculture in 1948 so that the conveyances were not made with with previous
approval of the Secretary of Agriculture and Commerce. So neither of the requirements of section 20 has been
complied with.

But it is suggested that in accordance with the presumption of regularity of official acts the Director of Lands must
have recommended the approval of the transfer. Admitting arguendo that such is the case, the conveyances still
suffer from at least one fatal defect in that it does not appear that they had to be made because the
homesteadercould not continue with his homestead through no fault of his own. We may not and cannot indulge in
presumptions on this necessary requirements, because the order for the issuance of the patent states just the
opposite. The order for the issuance of the patent states expressly that the homesteader had already complied with
all the requirements of the law with respect to cultivation, possession and otherwise, thus:

(5) That an investigation for the purpose of verifying the statements contained in the final proof papers was
conducted by a representative of the Bureau of Lands, who found that the applicant has fully complied with
the residence and cultivation requirements of the law; and

xxx xxx xxx

. . ., the undersigned is of the opinion that the applicant has complied with the requirements of law
preliminary to the issuance of patent to the land applied for and already surveyed." (Exhibit A.).

The order for the issuance of a patent as well as the statements of fact therein contained, as above-quoted,
conclusively disprove the existence of the requirement that the homesteader could not continue with the homestead
through no fault of his own.
In a legal sense, furthermore, when the Director of Lands issues the order for the issuance of a patent, after the
approval of the final proof, the right of the homesteader to the patent becomes absolute and then it becomes the
ministerial duty of the corresponding officials of the Government to issue said patent. To all intents and purposes the
order for the issuance of a patent is the same in effect as the issuance of a patent itself (Balboa vs. Farrales, 51
Phil., 499). And if the law (section 118, C. A. No. 114) prohibits the sale or conveyance of a homestead after the
issuance of a patent, the prohibition should be extended, in view of the apparent policy of the law, to the date on
which the order for the issuance of the patent is issued, which in this case is June 13, 1943.

Resuming what we have stated above, we find that the conveyances made by the heirs of the homesteader to the
defendants heren in the year 1947 do not comply with the first requirements of section 20 of the Public Land Act that
the Director of Lands is satisfied from proofs submitted by the homesteader that he (homesteader) could not
continue with his homestead through no fault of his own, and with the second that a conveyance must be made with
the prior or previous approval of the Secretary of Agriculture and Commerce; that from the date of an order for the
issuance of a patent for a homestead the homesteader to all intents and purposes is considered as having the
patent actually issued to himself, in so far as the prohibition contained in section 118 of the Public Land Act,
otherwise the intent and policy of the law may be avoided by the homesteader by postponing the getting of his
patent.

In accordance herewith the conveyances executed by the plaintiffs to the defendants are hereby declared null and
void, the transfer certificate of title issued in the name of the defendants (P-558 of the Office of the Register of
Deeds of Nueva Ecija) ordered cancelled, and the possession of the land returned to the plaintiffs upon return to the
defendants of the amounts received as price for the sale. No damages or costs. So ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Concepcion, and Reyes, J. B. L.,
JJ., concur.
G.R. No. L-9144 March 27, 1915

THE UNITED STATES, plaintiff-appellee,

vs.
VENANCIO DE GUZMAN (alias CACALASAN), defendant-appellant.

Bernabe de Guzman for appellant.

Office of the Solicitor-General Harvey for appellee.

CARSON, J.:

Venancio de Guzman, the defendant and appellant in this case, was convicted in the court below of the crime
ofasesinato (murder) and sentenced to life imprisonment.

The evidence of record leaves no room for doubt that, on the day and at place mentioned in the information, De
Guzman, who was walking through a field with Pedro and Serapio Macarling and Rufino Garin, deceased, struck the
latter on the head, knocked him down and held him on the ground while Pedro Macarling stabbed him to death.
There is and there can be no question as to his guilt of the crime of which he was convicted in the court below, the
only question raised on this appeal being his right to exemption from prosecution for the crime thus committed, on
the ground that a former information, charging the same offense, had been dismissed as to him in order that he
might testify as a witness for the prosecution.

It appears that some time prior to the trial of the case at bar an information was duly filed charging De Guzman,
jointly with the two Macarlings, with the murder of Guzman entered into an agreement with the fiscal under the terms
of which he promised to appear and testify as a witness for the Government at the trial of his coaccused, and to tell
the truth as to all that occurred, provided the information was dismissed as to him and he himself was not brought to
trial. With the consent of the court, and in pursuance of this agreement, he was not arraigned nor brought to trial,
and the information was dismissed as to him. One of his coaccused pleaded guilty and the other not guilty, and
thereafter the case came on for trial. after several witnesses had been called, De Guzman was placed on the
witness stand, and denied all knowledge of the murder. He denied that he had ever said anything implicating his
coaccused, and swore that a statement made by him before a justice of the peace was false, and that it had been
made through fear of certain police officer. Question by the court developed that he had made still another
statement to one Natnat, implication his coaccused, but he swore that statement had also been made through fear;
and repudiating all former statements made by him, he declared that they were false, and had been procured by the
prosecuting officials of the Government by the use of improper and illegal methods.

The Solicitor-General, relying on the provisions of sections 34, 35 and 365 of General orders No. 58, recommends
the discharge of the appellant, and that he be set at liberty forthwith, adding in the concluding paragraph of his brief
that, although such action would result "in a palpable misdismissal and expressly bars a future prosecution" for the
crime charged in the information which was dismissed as to him. We do not think so, and hold that, it conclusively
appearing that appellant failed to carry out his agreement with the fiscal, and had knowingly and falsely testified at
the trial of his coaccused, and that he fraudulently secured the dismissal of the former information, the state was
wholly within its rights in bringing him to trial, and convicting and sentencing him for the crime with which he was
charged in the former information.

Section 34, 35, and 36 of General orders No. 58, upon which counsel for defense and the Solicitor-General rely, are
as follows:

SEC. 34. When two or more persons shall be included in the same charge, the court, at any time before the
defendants have entered upon their defense or upon the application of the counsel of the Government, may
direct any defendant to be discharged, that he may be a witness for the United States.
 SEC. 35. When tow or more persons shall be included in the same charge, and the court shall be of opinion
in respect to a particular defendant that there is not sufficient evidence to put him on his defense, it must
order him to be discharged before the evidence is closed, that he may be a witness for his codefendant.

SEC. 36. The order indicated in sections thirty-four and thirty-five shall amount to an acquittal of the
defendant discharged, and shall be a bar to future prosecution for the same offense.

These sections constitute a part of the notably short, compact and concise military order issued April 23, 1900,
which prescribed, in very summary terms, the procedure to be followed in criminal cases in the various courts of the
Islands authorized to administer justice under American Sovereignty, and which continues in force, with a few
amendments, to the present day. We have frequently held that, for the proper construction and application of the
terms and provisions of legislative enactment's which have been borrowed from or of times essential to review the
legislative history of such enactments and to find an authoritative guide for their interpretation and application in the
decision of American and English courts of last resort construing and applying similar legislation in those countries.
(Kepner vs. U.S., 195 U.S., 100; 11 Phil. Rep., 669; Serra vs. Mortiga, 204 U.S., 470; 11 Phil. Rep., 762;
Alzua vs. Johnson, 21 Phil. Rep., 308.) Indeed it is a general rule of statutory construction that courts may take
judicial notice of the original and history of the statutes which they are called upon to construe and administer, and
of the facts which affect their derivation, validity and operation (2 Lewis Sutherland on Statutory Construction, sec.
309). This author in section 456, citing numerous cases in support of the doctrine, says also that:

Where the meaning of a statute or any statutory provision is not plain, a court is warranted in availing itself of
all legitimate aids to ascertain the true intention; and among them are some extraneous facts. The object
sought to be accomplished exercises a potent influence in determining the meaning of not only the principal
but also the minor provisions of a statute. To ascertain it fully the court will be greatly assisted by knowing,
and it is permitted to consider, the mischief intended to be removed or suppressed, or the necessity of any
kind which induced the enactment. If the statute has been in force for a long period it may be useful to know
what was the contemporary construction; its practical construction; the sense of the legal profession in
regard to it; the course and usages of business which it will affect.

The dismissal of complaints or informations as to one of several persons charged with the commission of an offense
in order that he may used as witness against his coaccused, and the making of agreements whereby quickly
persons are sometimes assured of exemption from criminal prosecution on condition that they testify against their
coparticipants in the commission of a crime, would appear to have been authorized under the provisions of General
Orders No. 58, as a necessary incident to the supplanting of the old system of criminal procedure with a system
borrowed, in large part, from English and American precedents. This, doubtless, as a result of the emphasis placed
by the new system on the presumption of innocence in favor of an accused persons, on the requirement that the
Government must establish its case beyond a reasonable doubt before the accused is called upon to defend
himself, on the prohibitions against compelling an accused persons to be a witness against himself, and against the
drawing of inferences of guilt from the silence of the accused. Experience, under English and American procedural
methods, has shown that without the aid of informers testifying against their coparticipants in crime, many guilty
parties would escape, where the facts which would sustain a conviction are known only to the guilty persons
themselves. Indeed, we do not doubt that the making of such agreements as the one under consideration would be
held to have authorized under the new system of criminal procedure upon the authority of American and English
precedents, even had it not been expressly recognized and provided for in General orders No. 58.

In the Whiskey Cases (9 Otto, 594; 25 L. ed., 399), we find an interesting history of the original and growth of the
practice under consideration. It there appears that aciently, under the common law of England, the criminal could not
interpose such an agreement with the state as a plea in bar to the prosecution for the offense with which he was
charged, but that the faithful performance of the agreement entitled him to an equitable rights to a recommendation
to executive clemency. In more recent times, however, the practice has been quite generally recognized by statutory
enactment in many jurisdiction, and under the statutes the faithful performance of the agreement is held to be a
complete bar to a subsequent prosecution of the criminal. A search of the year books shows but few cases in which
a defendant, after making an agreement with the prosecution to testify what he knows about the commission of the
crime, failed go comply with his promise. In the discussion of the general subject, however, there is much dicta to
the effect that the criminal must act in good faith and testify fully and fairly as to what he knows concerning the
crime, in order to claim immunity. (The Whiskey Cases, supra; Rex vs. Rudd, Crowp., 331, as quoted in 41 N.J.L.,
17; 4 Blackstone's Com., 330.)
The question arose in Texas under a statute providing that: "The attorney representing the State may at any time
under the rules provided in article 37 dismiss a prosecution as to one or more defendants indicated with others, and
the person so discharged may be introduced as a witness by either party." (Texas Code crim. Proc., art 709.)

Article 37 provides that when a district attorney desires to dismiss a case he shall file a written statement, setting not
occur without the permission of the presiding judge, who shall be satisfied that the reasons so stated are good and
sufficient to allow such dismissal. These statutory provisions, as will be seen, are not widely dissimilar from our own,
though we have no provision requiring a written statement of the reasons for dismissal to accompany motions of this
nature, a feature nevertheless which might well be adopted by the trial courts without the necessity for statutory
enactment. In Ex parte Greenhaw (41 Tex. Crim. R., 278), the court touched upon the question of the obligation of
the accused to keep faith with the State under such an agreement and said: "I can find no case in which the
question has been directly presented as to the terms of this character of contract; I think, however, it may be fairly
deduced from the authorities that the state or Sovereign can contract with the accomplice upon the following terms
only: In consideration that he shall testify fully and fairly as to all he knows in regard to the guilt of his associates in
the particular case in which the contract is made, that he will receive immunity from punishment as to such case. . . .
Again, it is agreed that there must be a compliance with the terms of the contract on the part of the accomplice
before he can claim immunity. . . . so it follows, if the accomplice testifies corruptly or falsely he cannot claim
immunity."

In the later case of Goodwin vs. State (158 S. W., 274), the supreme court of Texas had the question of good faith
on the part of the informer directly presented to it. The defendant had been jointly indicted with one Butler for
adultery. She agreed with the prosecuting officer that if he would dismiss the case against her she would testify fully
on the trial of her codefendant. The case was thereupon dismissed as to her, but when her codefendant was tried
she refused to testify against him fully. She contended that the State was bound by its agreement, and that she
could not thereafter be prosecuted. The supreme court, in sustaining the court's refusal to consider her discharge as
a plea in abatement, said: "If she had carried out her agreement with the State and testified fully as she agreed on
the trial of Butler then the States would have been bound by said agreement, and could not thereafter have
prosecuted her. But certainly the State was not found by its agreement unless she carried out her agreement with it.
As shown above she refused to do so."

The Texas statute is silent, as is our own, as to the consequence of bad faith on the part of the accused, and yet, as
we have seen, the Texas court held that a discharge of this kind, secured in bad faith, did not exempt the informer
from prosecution unless he keeps faith with the Government.

The more common form of the statutory declaration of this practice appears to be at permit any person accused of
crime to testify concerning it at the request of the prosecuting officer, with the understanding that when a person has
so testified he shall done in connection with such crime. This is the method adopted in various immunity clauses in
Acts of Congress (see Act of Feb. 25, 1903, 32 Star., 854, 903, 904, c. 775), with a proviso that persons committing
perjury, when so called upon to testify, may be punished therefor. (For a discussion of his history and an
enumeration of these laws, see U.S. vs. Swift, 186 Fed., 1002.)

The constitution of Oklahoma, however, contains the following provision which, like our own statute, has no proviso
authorizing a prosecution: "Any person having acknowledge or possession of facts that tend to establish the guilt of
any other person or corporation charged with an offense against the laws of the State shall not be excused from
giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to
incriminate him under the laws of the State; but no person shall be prosecuted or subjected to any penalty or
forfeiture for on account of any transaction, matter, or thing concerning which he may so testify or produce
evidence."

In discussing the effect of the failure of a defendant to keep faith with the Government when called upon to testify
against his codefendants under this constitutional provision, the supreme court of that State recently said: "In this
respect our immunity clause differs from the statute of Wisconsin, which reserves the right of prosecution for perjury
committed in the giving of such testimony. Touching this reservation the supreme court of Wisconsin, in the case
of State vs. Murphy (128 Wis., 201), in discussing the question as to whether or not under this statute a witness
could only secure immunity when he had testified to the truth, said: 'The statute itself, however, refutes any such
meaning, for it expressly reserves the right to prosecute for perjury "in giving such testimony."'
 The same reservation is contained in the Acts of Congress granting immunity. See United States Comp. St.
1901, p. 3173 (Act Feb. 11, 1893, c. 83 27 Stat., 443). If Congress had thought that a person who testified
falsely in answer to question of an incriminating character would be subject to prosecution for perjury, why
the necessity for this reservation? We have no such reservation in our constitutional provision; and, as
before said, if we should follow the precedents, when the witness does not speak the truth, the State would
be left without redress, although the witness had violated the purpose and spirit of the constitution. We
cannot believe that it was the purpose of the intelligent and just-loving of Oklahoma, when they voted for the
adoption of the constitution, to grant immunity to any man, based upon a lie, or, in other words, that they
intended that the commission of perjury should atone for an offense already committed. It is a familiar rule of
common law, common sense, and common justice that a legal right cannot be based upon fraud. We
therefore hold that the witness who claims immunity on account of self-incriminatory testimony which he had
been compelled to give must act in good faith with the State, and must make truthful replies to the question
which are propounded to him, and which he had been compelled to answer, and that any material
concealment or suppression of the truth on his part will deprive him of the immunity provided by the
constitution; and the witness must testify to something which, if true, would tend to criminate him. This
immunity is only granted to those who earn it by testifying in good faith. In our judgment any other
construction would be an insult to and a libel upon the intelligence of the people of Oklahoma, an outrage on
law, and a prostitution of justice. (Scribner vs. State, 132 Pac., 933, 940.)

From a review of the history and development of the practice under consideration, and reasoning along the line of
the above cited, we are all agreed that the failure of the accused in the case at bar, faithfully and honestly to carry
out his undertaking to appear as a witness and to tell the truth at the trial of his coaccused, deprived him of the right
to plead his former dismissal as a bar to his prosecution in the case now before us.

We have found considerable difficulty however in coming to an agreement as to the precise scope of the rule thus
adopted. All are agreed that in the absence of the above cited provisions of section 36 of General Orders No. 58,
which provides that an order discharging one of two or more accused persons that he may be a witness for the
prosecution "shall amount to an acquittal of the defendant thus discharged and shall be a bar to further prosecution
for the same offense," a corrupt and fraudulent agreement, or an agreement not faithfully with by the accused would
be no bar to further prosecution. Some of the members of the court are of opinion that notwithstanding this
provision, such agreements are always vitiated by the failure of the accused to testify honestly and faithfully, it
matters not whether the accused is discharged at or before the trial, other members of the court, of whom the writer
of this opinion is one, are inclined to believe that while the general rule as held by the majority is applicable in all
cases where the agreement is made and the order of discharge is entered before the trial actually begins, it is
limited and restricted by the provisions of section 36, and that in any case wherein an accused person is thus
discharged after he has entered on trial, the discharge amounts to an acquittal and bar a further prosecution. This
on the assumption (questioned by various members of the court) that sections 34, 35 and 36 purport only to deal
with, and do in fact deal only with incidents of "the trial," and declare merely what the procedure shall being cases of
such discharges after the trial has begun.

But however this may be, we are all agreed that in the case at bar, in which the order discharging defendant was
made before the trial began, appellant was not entitled to have the order of discharge held to amount to an acquittal
or a bar to further prosecution.

We find no errors in the proceedings prejudicial to the substantial rights of the accused, and the judgment convicting
and sentencing him should therefore be affirmed, with the costs of this instance against him. So ordered.

Arellano, C.J., and Torres, J., concur.

Araullo, J., dissents.

Separate Opinions

TRENT, J., concurring:

I concur.
In view, however, of the dissenting opinion, which seems to challenge the findings of fact set forth in the majority
opinion, it might be well to state the result of a careful examination of the record in this regard.

The evidence as to the guilt of the accused of the crime of murder of which he was convicted is conclusive, beyond
a reasonable doubt. It consists of clear, definite, competent, and incontrovertible evidence as to the three separate
confessions of guilt by the accused wherein he set forth in detail the circumstances under which he, together with
Pedro and Serapio Macarling, for and in consideration of a promise of fifty pesos, assassinated Rufino Garin,
deceased. These confessions were corroborated by the testimony of a number of witnesses, and leave no room for
the shadow of a doubt as to the truth and accuracy of the finding in the majority opinion, "that on the day and at the
place mentioned in the information. De Guzman, who was walking through a field with Pedro and Serapio Macarling
and Rufino Garin, deceased, struck the latter on the head, knocked him down and held him on the ground while
Pedro Macarling stabbed him to death."

In the majority opinion the court says; "It appears that some time prior to the trial of the case at bar, an information
was duly filed charging De Guzman, that before the former case came on for trial De Guzman entered into an
agreement with the fiscal, under the terms of which he promised to appear and testify as a witness for the
Government at the trial of his coaccused, and to tell the truth as to all that occurred, provided the information was
dismissed as to him and he himself was not brought to trial. With the consent of the court, and in pursuance to this
agreement, he was not arraigned or brought to trial, and the information was dismissed as to him. One of his
coaccused pleaded guilty and the other not guilty, and thereafter the case come on for trial. After several witnesses
had been called, De Guzman was placed on the witness stand, and denied all knowledge of the murder. he denied
that he had ever said anything implication his coaccused, and swore that a statement made by him before a justice
of the peace was false, and that it had been made through fear of certain police officers. Questions by the court
developed that he had made still another statement to one Natnat, implicating his coaccused, but he swore that
statement had also been made through fear; and repudiating all former statements made by him, he declared that
they were false, and had been procured by the prosecuting officials of the Government by the use of improper and
illegal methods."

With regard to this citation the writer of the dissenting opinion says: "The contention that I am making in regard to
this case and the foundation of may dissent is that there is not a word or syllable of evidence in the record to
support a single fact set forth in the foregoing quotation, except the fact that the accused in this case was
discharged to be used as a witness for the prosecution in a prior case."

I do not think that this criticism is supported by the record. I find on page 2 of the original record in the court below
the following note entered by direction of the court: "At this point the attorney for the accused asked the court to
dismiss the case and acquit the accused because of the fact that he had been discharged from the former complaint
and under section No. 34 of General Orders No. 58 and that under order or section No. 36 of the same general
order No. 58 his discharge amounts to an acquittal and bars the present prosecution for the same offense. The court
understands that section No. 36 is for the purpose of avoiding that the accused be put twice in jeopardy. In the case
at bar the accused was excluded from the complaint before he had answered whether he was guilty or not and
before any witness had declared in the case. The court understands that jeopardy had not at that time attached,
and, therefore, he denies the motion."

I find on page 20 of the record the following:

The FISCAL. Government rests.

Mr. BERNABE DE GUZMAN (attorney for defense). I offer in evidence the description of notes of the
evidence taken in case No. 3983 first case against the same accused with three others, in which it appears
a motion for the prosecution asking for the exclusion of the accused who will be utilized as a witness for the
prosecution.

The COURT. Claim will be admitted as asked for by the attorney.

In the decision filed with the record in the court below I find the following:
 This accused in the same Venancio de Guzman who was charged with the crime of "asesinato" together
with Antonio Soriano, Serapio Macarling, and Pedro Macarling in criminal case No. 3983 of this court. When
that case was called for trial and before the accused Venancio de Guzman had been required to plead, the
fiscal asked the court to dismiss the case against Venancio de Guzman under the circumstances set out in
the first paragraph of the decision in the case which is as follows:

When this case was called for trial the accused, Antonio Soriano, plead not guilty; Serapio Macarling plead
guilty, and Pedro Macarling plead not guilty. Venancio de Guzman was not required to plead as under an
agreement with the fiscal and Sr. Monserrat, an attorney assisting the prosecution, that he would state the
whole truth, as upon his statement and promise they expected to secure the conviction of Antonio Soriano
the prosecution asked that he be excluded from the complaint. The court then granted this petition of the
fiscal, also under the same understanding and agreement as the fiscal had been under as per his statement
to the court; but after several of the witnesses had been presented the witness Venancio de Guzman was
called, he denied that he had ever said anything to anyone implicating Antonio Soriano and said that his
statement made before the justice of the peace was untrue, that he only made it through fear of the
Constabulary. After the court questioned him he admitted he had made some statement implicating Antonio
Soriano to Diego Natnat, but stated that he did that through fear and knowing what he was stating, and
stating now that all those statements implicating Antonio Soriano were untrue. The fiscal has stated that he
was deceived by the statement of Venancio de Guzman to him as to what his declaration would be on the
witness stand and under that agreement or deception practiced by Venancio de Guzman he asked that the
case be dismissed as regards to him but now desires that the case be reinstated. Therefore the court orders
the fiscal to file a new complaint against Venancio de Guzman, summon the witness and set a day for its
hearing.

The attorney who was representing the four accused in said case No. 3983, attorney Mr. E. S. Smith, has
asked permission of the court to be relieved from further part in the agreement with the fiscal, having been
misled by former statements of Venancio de Guzman. The court therefore relieved Mr. Smith and as the said
Venancio de Guzman stated he would not employ another attorney the court appointed Mr. Bernabe his
defensor de oficio' to defend the present case.

I think that these citation from the record of this case in the court below clearly and conclusively establish that the
record of the former case No. 3983 was before the trial judge when he rendered his decision in this case, and that
record was submitted by the accused himself, in support of his plea in bar. The record of the former case was the
best evidence, and indeed the only competent evidence of the alleged fact upon which the accused set up his plea
in bar. It may be admitted that the language of the record is somewhat informal and lacking in technical precision,
but unless we are to look only to the form and not the substance, and unless we are to demand an unreasonably
high degree of technical precision in the annotation in the record of incidents occurring in trial courts. there can be
no manner of doubt that the accused himself at the trial in this case offered the record of the former case in support
of his plea in bar, and also in support of his claim that his former discharge amounted to an acquittal and barred the
prosecution of the present case.

With the record of the former case before him, the trial judge declined to dismiss the information on the grounds set
forth in his opinion. In the opinion he sets forth the about cited extract from the decision entered in the former case,
which contains a relation of all the material facts touching the proceedings in the former case necessary to sustain
the conclusions of the court below and of this court as to the lack of sufficient grounds for his contentions in support
of his plea of double jeopardy and his prayer for the dismissal of the information.

It may be admitted that the original record of the former case should have been brought here on appeal; and
doubtless the necessary orders for that purpose would have been issued in response to a request to that effect by
any interested party. But the only object of the introduction of the record by the accused was to establish his claim
that the information in the former case had been discharged as to him under the circumstances set forth in section
34 of General Orders No. 58; and the extract from the former decision cited in the opinion filed in this case sets forth
just what these circumstances were, and the facts above set forth were not challenged or controverted by the
accused who himself offered the record in support of his plea.

Counsel's opinion of the lower court's findings of fact in regard to the sole defense offered by the accused may be
gathered from the following quotations from his brief on this appeal; "In the trail of the present case, the attorney for
the defendant Venancio de Guzman waived the preliminary investigation and asked the court to dismiss the case,
based upon the exclusion of this defendant in case No. 3983, which, according to section 36 of General Orders No.
58, is equivalent to an acquittal.

xxx xxx xxx

The fiscal was deceived as to what the accused promised to testify in the first case; let him be charged with
whatever legal crime may be proper; but there is no reason why he should again be accused of the same
crime.

Thus it will be seen that both the court below and the defendant's counsel agree upon the nature of the evidence
which was introduced by the offer of the latter, recorded on page 20 of the record. Not the slightest criticism is
offered by the defendant's counsel concerning the findings of facts by the court below relative to the special defense
under the provisions of sections 34-36 of General Orders No. 58. The case has been submitted to this Supreme
Court for review by both parties upon the theory that the comment contained in the judgment below upon the
evidence introduced by the accused in support of his plea in bar was a true resume thereof. Unless we hold that no
evidence at all was submitted to the trial court in support of the defendant's plea, it is difficult to perceive upon what
ground part of the court's findings upon the point may be accepted and the remainder rejected. if that part of the
court's findings which relates to the dismissal of the information against the accused in the former case be accepted,
why not, in the absence of any objection, accept the other part relating to the circumstances leading up to and
subsequent to the dismissal?

In the absence of any objection on the part of the accused, this court accepted the relating of facts set forth in the
opinion of the trial judge as a correct report of the incident relied upon by counsel for the appellant in support of his
contention that the trial court erred in construing these facts as it did. Under all these circumstances and bearing in
mind that the accused substantially admits the truth and accuracy of the relation of the facts set forth in the opinion
of the trial court, how can it be maintained "that there is not a word or syllable in the record" to support the facts as
to the incident on which this court, as well as the court below, relied in disposing of the contentions of the accused?
By presenting the record of the former case without raising any question as to the truth and accuracy of the relation
of the incidents of the former trial, the accused clearly consented to be bound thereby and, in truth, admitted the
correctness of that record in this regard.

Nor do I consider, with the evidence of the defendant's fraud upon the state's prosecuting officer and upon the trial
court admitted, that the accused was at any time or in any way misled by the interposition of this fraud to nullify the
effect of the proceedings taken under the provisions of sections 34-36 of General Orders No. 58. No one could have
been better apprised of the fact of his deceit than the defendant himself, and he was apprised also of the use which
the Government intended to make of his duplicity. This is shown from that part of the judgment of the court wherein
it stated: "Therefore, the court orders the fiscal to file a new complaint against Venancio de Guzman, to summon
witnesses, and to set a day for its hearing."

This shows that the court's sole reason for disregarding the dismissal granted the accused was due to his failure to
keep faith with the Government. With knowledge of his own fraud and of the use which the Government intended to
make of it, can it be said with reason that the accused was surprised by the turn of affairs? Here again there is no
complaint on the part of the accused. He has not objected to the consideration of his fraud. He has not objected to
its being considered in determining the efficacy of his plea under the provisions of sections 34-36 of General Orders
No. 58. Both are established by the most satisfactory kind of evidence, the unquestioned findings of the court which
tried the case.

MORELAND, J., dissenting:

The decision of the court states: "It appears that some time prior to the trial of the case at bar, an information was
duly filed charging De Guzman, jointly with the two Macarlings, with the murder of Garin; that before the former case
came on for trial De Guzman entered into an agreement with the fiscal, under the terms of which he promised to
appear and testify as a witness for the Government at the trial of his coaccused, and to tell the truth as to all that
occurred, provided the information was dismissed as to him and he himself was not brought to trial. With the
consent of the court, and in pursuance of this agreement, he was not arraigned nor brought to trial, and the
information was dismissed as to him. One of his coaccused pleaded guilty and the other not guilty, and thereafter
the case came on for trial. After several witnesses had been called, De Guzman was placed on the witness stand,
and denied all knowledge of the murder. He denied that he had ever said anything implicating his coaccused, and
swore that a statement made by him before a justice of the peace was false and that it had been made through fear
of certain police officers. Questions by the court developed that he had made still another statement to one Natnat,
implicating his coaccused, but he swore that statement had also been made through fear; and repudiating all former
statements made by him, he declared that they were false, and had been procured by the prosecuting officials of the
Government by the use of improper and illegal methods."

The contention which I am making in regard to this case and the foundation of my dissent is that there is not a word
or syllable of evidence in the record to purport a single fact set forth in the foregoing quotation, except the fact that
the accused in this case was discharged to be used as a witness for the prosecution in a prior case. As to the
balance of the statement, the record is devoid of evidence to support a fact found therein, although the fact
presented by the statement form the sole basis upon which the court founds its decision in this case, namely, that
the defendant can be tried after the case against him has been dismissed and he has been discharged under
sections 34 and 36 of the Code of Criminal Procedure.

The fact that the case was so dismissed and the accused discharged is admitted by the prosecution. (See brief of
the Solicitor-General in this court.) The defendant pleaded it, and the truth of the plea was in effect admitted in the
court below by the prosecuting attorney and is here by the Solicitor-General, and was found as a fact by the trial
court. The sole reason for a dismissal of that plea was that the release of accused wads obtained by fraud as stated
in the prevailing opinion already quoted. All there is in the record in this case which, in any manner, refers to the
alleged fraud and misrepresentation as set out in the quotation is the opinion of the trial court convicting the
accused, dictated in this very case, in which he purports to give the history of the case leading up to the discharge of
the defendant to be used as a witness for the prosecution. As I have said, the facts thus stated in the opinion of the
trial court relative to the alleged fraud and deceit, which have been taken and accepted as true by this court in
deciding this case and are the sole basis of its decision, are not supported by a scintilla of evidence in the record.

Of course, under section 34 and 36 of the Code, quoted in the prevailing opinion, the discharged of the defendant to
be used as a witness for the Government is a bar to a subsequent prosecution with respect to the same charge.
This court seeks to escape that bar, the effect and efficacy of which is admitted, by setting forth that the discharge of
the accused under those sections was attained by false and fraudulent representations and deceit on his part; that
the dismissal of the case against him was obtained solely by that methods and that, therefore, the bar ought not to
stand. The whole basis of the refusal of the court to follow sections 34 and 36 in this case is that there was a fraud
committed by the accused on the Government and that, in law, nobody can take anything by fraud.

Let us suppose that the accused did commit a fraud on the Government and that he represented that he would tell
the truth in the trial against his companions and that, upon that representation, he obtained his discharge; that later
he refused to tell the truth about the matter and denied all knowledge of his companions' guilt. Let us suppose all
this. What must the Government do to get the matter properly before the court? if the defendant sets up his former
discharge and the corresponding privileges conceded under sections 34 and 36 as bar to the action against him,
and the Government desires to destroy the virtue of that plea, what must it do? Why, just the same as any other
litigant when he wishes to deny or avoid what his adversary has pleaded. He brings the matter to an issue either by
denying the plea or by affirmatively alleging new matter which, if true, avoids it. When the Government, in reply to a
plea in bar under sections 34 and 36, cries fraud and deceits, should it not be required to allege the facts
constituting that fraud and deceit and tender an issue with respect thereto, and thus give the accused an opportunity
to meet the allegation? Moreover, when the Government alleges fraud, is it not its duty to prove it? Where a statute
permits the defendant to plea in bar a former judgment of acquittal and he sustains that plea by evidence or
admission, and the Government, desiring to avoid the effects of that plea, alleges as a defense to that plea that the
defendant obtained that acquittal by fraud and deceit, is it not the business of the Government to prove that
allegation by competent and relevant evidence? Unquestionably so. The Government cannot deprive an individual
of the benefits of sections 34 and 36 of the Code of criminal Procedure by naked allegations. Mere allegations of
fraud have no effect; they must be proved to produce results.

It is clear, therefore, that, even according to the theory of the prevailing opinion, the plea of former acquittal as a bar
is conclusive until the Government shows by evidence that acquittal was obtained by fraud and deceit. As I have
before stated, there is not a single word of evidence anywhere in the record upon that subject. The court has
assumed every fact it has found against the defendant. Not one of them is proved. Without facts, without evidence,
without support or basis of any kind, it has overruled and set aside the judgment of dismissal in favor of this
defendant rendered on a former trial, and wiped out the plea founded thereon by virtue of the sections referred to.
Has the record in the case against the Macarlings, the one in which the defendant was discharged, been offered in
evidence in this case? Has the prosecuting attorney been sworn and has he testified what the alleged fraudulent
representations were, who made them and how he was imposed upon and deceived by them? Has the private
prosecutor been sworn relative to the same matter? Or accused's own counsel who, the trial court says, was also
deceived? Has the court testified and informed us how he was wheedled into dismissing the case against the
accused by reason of his false representations and deceit? Has any documentary evidence been offered or has any
witness declared with respect to the fraud alleged to have been committed upon the Government by this defendant?
Not a single document has been presented, not a single witness has testified to a single fact relative to the fraud
alleged to have been perpetrated against the Government. The only evidence offered by the prosecution in this case
was (1) the testimony of Brigido Serafica, Francisco de Aquino, Manuel Garcia, Diego Natnat, Blandina Garin,
Liberato Garin, Gabriel Prado and Lorenzo Llamas, all of whom testified in the case at bar with respect to the guilt of
the defendant of the crime charged; and (2) a statement made by the accused to the justice of the peace when he
was arrested, which was evidently admitted on the theory that it was a confession of guilt as to the crime for the
commission of which he was then under arrest. None of the evidence relates in any way to the fraud which it is
alleged the defendant committed against the Government. Not only is there no evidence in the record supporting the
charge of fraud and misrepresentation made by this court in the prevailing opinion, and not only was there no
evidence to that effect in the court below, but there was never even an allegation of fraud made during the trial. No
issue was tendered to the accused on that subject. When the defendant entered the plea in bar the prosecuting
attorney, as well as the court, admitted it. The prosecuting attorney offered no allegations opposed to this plea, no
pleading on that subject was filed by him or anyone else with the trial court, and no issue was ever framed or
tendered on the subject, either expressly or impliedly. On the contrary, the refusal to allow — that is, the dismissal of
— the plea was expressly placed on wholly different grounds. On page 2 of the evidence appears the following:

The COURT. At this point the attorney for the accused asked the court to dismiss the case and acquit the
accused because of the fact that he had been discharged from the former complaint and under section. No
34 of General Orders No. 58 and that under section No. 36 of the same General Order No. 58 his discharge
amounts to an acquittal and bars the present prosecution for the same offense. The court understands that
section No. 36 is for the purpose of avoiding that the accused be put twice in jeopardy. In the case at bar the
accused was excluded from the complaint before he had answered whether he was guilty or not and before
any witness had declared in the case. The court understands that jeopardy had not at that time attached,
and, therefore, he denies the motion.

As clearly appears from this, there was no defense to the validity of defendant's plea upon the ground that he had
obtained his discharge by fraud and deceit. The refusal to recognize the plea was based solely upon the groundthat
he had not been placed in jeopardy in the first trial and that, therefore, the plea in bar was without value, the trial
court understanding that the question of jeopardy, and not of bar under sections 34 and 36, was raised by the plea.
At that time it had not occurred to the judge or to the Government to assert the proposition that the defendant had
obtained his discharge by fraud and deceit. The cause went to trial upon the merits, the prosecution presented its
witnesses and rested its case. The charge of fraud not having occurred either to the judge or to the Government, no
allegation to that effect had been made by the Government and, of course, no evidence was introduced with regard
to it. Fraud was not made an issue in the cause, was not even an element in the case, was not mentioned or even
thought of by anybody and, of course, no evidence was offered to sustain it. from one end to the other of the record
in the Court of First Instance there is no allegation, or intimation of an allegation, of fraud, and throughout the whole
record there is not a scintilla of evidence relating thereto.

The first intimation of fraud of any kind or character was made after the trial was completed. It is fraud in the opinion
of the judge convicting the accused. I repeat that, up to that point, there is not only evidence whatever relative to
fraud and deceit practiced by the defendant, but there is not even an allegation or an intimation that he ever
practiced any. The court said on that subject in its opinion finding the accused guilty of murder:

As in the present case the accused Venancio de Guzman in the case No. 3983 deceived his own attorney,
the fiscal and the court, by his statements, and then, when on the witness stand, denied all these statements
and the testimony resulted in the acquittal of the accused Antonio Soriano when it was sought and expected
to result in his conviction. He practiced deception on the fiscal, did not attempt to comply with his agreement
and therefore cannot complaint if the fiscal has instituted a new complaint against him; nor can he claim the
protection of former jeopardy since jeopardy had not attached when the complaint against him was
dismissed. Nor was his declaration as a witness in said case. No. 3983 necessary to the conviction of those
two accused, Pedro Macarling and Serapio Macarling, nor has it been used against him in any in the present
case.
Let us again recall that throughout this whole case there had not been even an allegation of fraud against the
accused and no evidence whatever sustaining such a charge. No one had ever claimed that the accused had
"deceived his own attorney, the fiscal, and the court," that "when on the witness stand" he had "denied all these
statements," that "he practiced deception on the fiscal and did not attempt to comply with his agreement." These
things were utterly unheard of during the trial. What, then, must have been the surprise of the accused to read in the
decision of the court, after all opportunity to defend himself upon that charge had passed, the statement that his
plea was disallowed because he had obtained it by false and fraudulent representations. It is too late for the
accused to defend himself against charges which appear for the first time in the decision convicting him. He is
utterly helpless when the opinion goes outside of the record and bases the conviction upon charges never before
formulated. If such things can occur, the accused has no possibility of defending himself. If is not enough to urge, if it
can be urged, that the trial court had the right to take judicial notice of its own records, because there had been
presented no allegation and there had been framed no issue with respect of which this record could have been
evidence. Before there can be evidence there must be an issue. Moreover, if the accused had been notified that he
was being charged with fraud and deceit and thereby deprived of the benefits of sections 34 and 36, he would have
had the opportunity, as he would have had the right, to meet the allegations and evidence presented by the
prosecution by making counter allegations himself and presenting evidence in his own behalf; and while, for the
sake of argument, it may be conceded that the Court of first Instance had the right to take judicial notice of a
previous record, that does not lessen the gravity of the error committed against the rights of the accused, because
he had a right to be heard upon the issue with respect to which the court took judicial notice of this record and to
present his own proofs with respect thereto.

The finding in the opinion of the trial court that the accused had obtained his discharge by false and fraudulent
representations and deceit was a complete surprise. No allegation to that effect had been made; no evidence to
support it had been offered. Upon that subject he has not had his day in court. No issue has been tendered him
relative to that matter, no evidence has been offered against him on that subject and he has had no opportunity to
offer evidence in his own behalf. He has been deprived of his rights without due process of law.

The concurring opinion attempts, by argument, to sustain the opinion of the court. In doing so several errors of fact
have, in my opinion, been committed and various conclusions drawn which, according to my view of the case, do
not follow from the premises presented. Much of the concurring opinion strives to show that the decision of the court
is based on evidence which was introduced during the trial, but which it is admitted, is not found in the record of the
trial court or in the record on this appeal. The result was to anticipate the argument of the dissenting opinion that
there was not a fact in the record which supported the fundamental basis of the decision that the accused was not
entitled to the advantages of sections 34 and 36 for the reason that he had obtained his discharge in the former
case by fraud and deceit. Passing for the moment the attempt made, not only in the opinion of the court but in the
concurring opinion as well, to treat and use as facts proved the statements of the trial court made in its judgment of
conviction in case No. 3983 as well as in this case, a method of obtaining facts for the conviction of an accused
which is sanctioned by no authority that I can find, I note, in the first place, that the concurring opinion, to establish
the proposition that there is evidence showing the fraud which the accused is charged in that opinion and the
opinion of this court with having committed in obtaining his release, quotes from page 20 of the record in this case
as follows:

The FISCAL. Government rests.

Mr. BERNABE DE GUZMAN (attorney for defense). I offer in evidence the description (transcript) of notes of
the evidence taken in case No. 3983 first case against the same accused with three others, in which (it)
appears a motion for (of) the prosecution asking for the exclusion of the accused who will (to) be utilized as
a witness for the prosecution.

The COURT. Claim will be admitted as asked for by the attorney.

In addition to this the concurring opinion quotes from the judgment of the trial court in case No. 3983 and in this
case convicting the accused for the purpose of setting forth what is claimed to be the evidence which was before the
court when it made the decision in this case. There is claim that the court took judicial notice of any records or that it
had the right to. The sole contention is that there is evidence in the record showing fraud and deceit and that the
accused himself introduced it, and it is upon the evidence which it is alleged the accused himself produced that the
claim is based that there was evidence of fraud and deceit in the record in the court below and here upon which are
based the findings quoted; and it is to substantiate this claim that the concurring opinion cites the part of the record
above set out, which, it is claimed, proves the assertion. Upon that quotation from the record, then, rests the whole
contention that there was evidence before the trial court supporting the finding that the accused obtained his
discharged by fraud and deceit. From this record is drawn the following conclusions, among other: "I think that these
citations from the record of this case in the court below clearly and conclusively establish that the record of the
former case No. 3983 was before the trial judge when he rendered his decision in this case, and that record was
submitted by the accused himself, in support of his plea in bar."

And: ". . . there can be no manner of doubt that the accused himself at the trial in this case offered the record of the
former case in support of his plea in bar, and also in support of his claim that his former discharge amounted to an
acquittal and barred the prosecution of the present case."

And: "With the record of the former case before him," etc.

It is clear from the face of the concurring opinion itself, so far as it refers to this particular point, that the writer
thereof fell into error, not only of fact but of conclusion. According to the quotation which the concurring opinion itself
contains, all that is claimed is that the accused offered in evidence the "notes of the evidence" taken in case No.
3983. Assuming that they were offered and received in evidence, does that justify the conclusion that the record of
cause No. 3983 was introduced in evidence? Is there no difference between "notes of the evidence" and the record
of the case? Is there not something in the record of a case besides "notes of the evidence?" and is it not a long jump
from the "notes of the evidence" to the whole record of a criminal case? This error is carried throughout the entire
discussion and is repeated and reiterated. The record of case No. 3983 was not offered in evidence by anybody,
was not received in evidence by the court, was not make a part of the record in the trial court, or of the record on
appeal, and has not been assumed to have been in evidence by anybody except this court. The only exhibit in the
case in the one listed by the clerk of the trial court who made up the record and sent it to this court (section 48 Code
Crim. Proc.), and that is Exhibit A, introduced by the prosecution itself, consisting of a statement made by the
accused before the justice of the peace at the time of his arrest and to which I have already referred in this opinion.
There is not another exhibit in the case; and other exhibit was, at any time, received by the trial court. It having been
erroneously assumed that the record in case No. 3983 was offered in evidence, and the opinions in this case being
based wholly upon that assumption, and that assumption being without foundation, there can be but one result.

But there is another error; and that is the assumption that the "notes of the evidence" offered by the accused were in
fact received in evidence by the court, were part of its record, and were property before it in its consideration of the
case. In the first place, as matter of fact, the part of the record offered was not received in evidence, and, in the
second place, it was not necessary that it be received, as the fact which its introduction would establish was, in
effect, admitted by everybody. As I have already was, in this opinion, the plea of the accused that he had been
discharged in the former case (No. 3983) to be a witness for the Government, and the facts upon which it was
based, were admitted by the prosecuting attorney, by the court on the trial, and by the Attorney-General in this court
on this appeal. No one at any point in the case has ever denied or even questioned either the plea or the facts upon
which it was based. They were always undisputed and uncontradicted. As I have already stated, the instant that the
plea was made, and that was at the beginning of the trial, the court, with the acquiescence of all parties, assumed to
be true the facts upon which it was based and then and there finally determined the question raised by the plea,
held it bad and rejected it. He based his rejection of the plea, not on the ground that the accused had ground that
the accused had not been in jeopardy. The court could have made no decision as to the efficacy of the plea if the
fact on which it was based had not been admitted, as no evidence had been offered to prove the plea and there was
no evidence before the court on that subject.

The attorney for the accused, however, in spite of the fact that it appears to have been admitted by everybody that
the accused had been released on a former charge to be witness for the Government, nevertheless offered in
evidence so much of the record as would show that fact. This offer again developed the fact that it was admitted that
he had been so released. This is shown by the quotation found in the concurring opinion, taken from page 20 of the
record. The court did not receive in evidence that portion of the record reffered by the accused but, on the contrary,
assured the accused that his claim that he had been so discharged was admitted as he asserted it. That this is the
case is clear from the quotation referred to. When that portion of the record was offered is received in evidence and
marked exhibit so and so," as a court would naturally say if it had received the evidence offered. On the contrary,
there is not a word which shows that it was received in evidence or that it was marked as an exhibit. The language
of the court used at the time does not warrant the statement that it was received and the fact that it was not made an
exhibit, was never referred to in the court below, never became a part of the record in that court, was not physically
before that court, is not a part of the record on this appeal, is not physically before this court, and is not referred to
by the attorneys who argued the case, is clear proof, unless it is entirely immaterial, that it was not received in
evidence and that the court never intended to receive it. On the other hand, the language used by the court when
the evidence was offered, namely, "claim will be admitted as asked for by the attorney," shows that the claim of the
accused that he had been released on a former occasion, and to sustain which he was offering that portion of the
record, would be admitted. That being the case, there was no necessity for receiving that portion of the record
offered; and, as a matter of fact, it never was received and never was, physically or otherwise, a part of the record in
that court and is not a part of the record here.

The third error in the concurring opinion is connected somewhat with the error first pointed out, namely, that of
assuming that because the "notes of the evidence" were offered as evidence, the whole record became a part of the
evidence in the case. That error consists in assuming that, even though the portion of the record in the previous
case offered by the attorney for the accused had been received in evidence and had been made a part of the record
in this case as made up by the trial court, it would have included all of the evidence taken in case No. 3983. It
should be noted that the only evidence taken in case No. 3983 offered by counsel for the accused was those "notes
of the evidence . . . in which appears a motion for the prosecution asking for the exclusion of the accused to be
utilized as a witness for the prosecution." The accused did not offer all of the evidence taken in case No. 3983. None
of the evidence was competent, relevant, namely, that he had been discharged under a former indictment charging
the same crime with which he was charged in the case in which he entered the plea. What Tom, Dick and Harry may
have testified to in case No. 3983 relative to the guilt of the persons there on trial would be of no consequence in
establishing defendant's plea in bar. What he was required to prove was that he had been before charged with the
same crime that he then stood charged with, that others were charged with him in the same information, that upon
the motion of the Government he had been released from that charge in order to be a witness for the Government.
Those are the only facts that the defendant had to prove to sustain his plea. His offer, therefore, was only of so
much of the stenographer's notes as showed the fact that he had been legally offer, so far as the evidence in case
No. 3983 was concerned as that was all that was material. We cannot assume, as the concurring opinion assumes,
and as we must assume if we are to hold that the evidence referred to was really received in evidence, that the
defendant offered incompetent, irrelevant and immaterial evidence, that the Government failed to object to it, and
that the court admitted it. The only part of the record in case No. 3983 which defendant offered was that which
showed that he had been discharged. He did not offer all the evidence in that case or any other portion of the
evidence of that case; and what he did offer was not received by the court or made a part of the record.

Even if all the evidence in case No. 3983 had been admitted, as claimed it would not have been sufficient to prove
defendant's plea. It would have been necessary, in addition, to prove that the crime with which he stood charged in
cause No. 3983 was the same crime with which he was charged in the case in which the plea was offered, that, in
cause No. 3983, he was charged jointly with others, and that, on motion of the Government, he was discharged in
that case to be used a a witness for the Government. None of these facts were proved, nor did defendant offer to
prove any of them, except one. They were all admitted, in effect; and he was under no obligation to prove them
when even the court itself without objection of any kind from anybody assumed their existence. They have been
assumed to be true in every step of the proceedings since that time; and in this court one of the first to admit the
existence of those facts, although there was not a particle of evidence in the record establishing them, was the
Attorney-General on this appeal.

The fourth error committed in the concurring opinion is found in the assumption that, even if the whole record in
case No. 3983 had been introduced in evidence by the defendant, it would have proved defendant's fraud in
obtaining his discharge, and would, therefore, have avoided the force of the plea. This conclusion, drawn by the
concurring opinion as well as the prevailing opinion (although the record in No. 3983 is not here and no one has
seen it), does not at all follow. Apart from the statement made in the opinion of the court in that case, it nowhere
appears in the record in case No. 3983, so far as is known, that the Government was deceived or defrauded by the
defendant, unless the inference of fraud and the resulting deception may be drawn from the fact that the defendant
may not have testified in favor of the Government. I do not know whether that fact appears in the record in case No.
3983, because, as I have stated, no part of that record is here. All that I know about it I gather from what the trial
court has said in its opinion. But even if it does appear in that case that the defendant did not testify in favor of the
Government, that does not prove that he deceived the officials of the Government, It cannot be assumed from the
mere fact that a witness did not testify to anything that aided the Government that he was guilty of willfully deceiving
the Government or of deliberately practicing deceit on its officials. So far as the statement of the court shows, as
made in its opinion in case no. 3983, what the accused did as a witness was to deny that he had ever made any
statements unfavorable to his coaccused. He testified to nothing that affected the Government's case in any way. All
that happened was that the accused failed to testify in any sense, either for or against the Government. From that
fact alone it cannot be assumed that he committed a fraud by reason of which the Government lost its case against
the other accused. As I have said before, no one testified, either in this case or in case No. 3983, what the
agreement of the accused was with the Government officials. Neither the prosecuting attorney nor the private
prosecutor was put on the stand to prove how he was to testify, or the nature and terms of the agreement under
which he was discharged. Neither of those persons has testified that he was deceived by the accused, or that he
was induced to obtain the discharge of the accused by fraud and deceit. Neither in case No. 3983 nor in the case at
bar is there a syllable or evidence showing that the accused in any way deceived the Government or its officials or
that he in any way or to any extent obtained his discharged by fraud and deceit. All that there is in the record of
either case is the statement made by the court, without a particle of evidence of record to sustain it, that the accused
obtained his discharge by fraud. The court itself, in its opinion, admits that nobody testified to facts constituting fraud
when it says that "the fiscal has stated that he was deceived by the statement of Venancio de Guzman to him as to
what his declaration would be on the witness stand." The mere statement of the prosecuting attorney to the court is
not evidence against anybody. He was not sworn as a witness, was not put on the stand as a witness for any party,
was not examined under oath, and no opportunity was given the accused or his counsel to cross-examine him. The
mere statement of the court in its opinion in case No. 3983 cannot, as I have before stated, be used to prove, in the
case at bar, the existence of facts stated therein. In other words, a court cannot make a record in a criminal case by
incorporating in its opinion all of the facts which ought to appear in that record. Records in criminal cases are not
made in that way.

It seems to me clear, therefore, that even if the record in case No. 3983 were before the trial court and this court, it
would not prove the fact that the accused committed fraud against the Government and that he obtained, by that
means, his discharge in case No. 3983. The conclusion of the concurring opinion that the fraud is proved from the
record of case No. 3983 is, therefore, erroneous — erroneous in two ways, first, it assumes that the record is here,
and, second, it assumes what it would prove if it were.

While there is much comment in the concurring opinion on the necessity of the elimination of technicalities and of
looking at the substance and not the form, I find nothing on the injustice of depriving a person of his statutory rights
without notice of the grounds upon which it is proposed to do so. Here was an accused who entered a plea the facts
supporting which were admitted on all hands. that plea, as admitted, was sufficient, under section 34 and 36 of the
Code of Criminal procedure, to bar the action in which the plea was made and to require the immediate discharge of
the accused from custody. The only possible way of defeating that plea and destroying the efficacy thereof was for
the Government to prove that the former discharge had been obtained by false and fraudulent representations and
deceit and that it was, therefore, of no legal force or value. Now, if it was, therefore, of the Government to make that
defense to the plea, was not the accused entitled to know it? Was he not, as matter of plain justice, entitled to know
that the Government intended to destroy the force and value of his plea by claiming that it had been obtained by
false and fraudulent representations? Was it not the duty of the Government, as one of the litigants in a court of
justice, to give the accused some notice of what it was going to do? I pass over without comment the position taken
in the concurring opinion that, inasmuch as the accused knew better than any one else of the fraud that he had
committed, it was not necessary for the Government to give him notice of its intention it, it is duty of a party to an
action to uniform his adversary of the nature of his claim or defense so as to afford a fair opportunity to meet it. In
what part of the record in this case has the Government done this thing? At what point and when in the trial of this
case did it notify the accused that it proposed to destroy his plea by claiming that he had obtained it by fraud and
deceit? Where did they tender him an issue upon that point? Nowhere and at no time was he notified nor did he
have the slightest knowledge that an attempt was to be made to destroy his plea on that ground. Not only can we
assert without hesitation that no such notice was given him, but we can declare that the Government did not intend
to give him such notice. This is clearly shown from the fact that the Government did not offer a syllable of evidence
during the trial to show that the accused had obtained his discharge by fraud and deceit. It seems to me
extraordinary that it can be claimed that it can avoid defendant's plea by alleging fraud at this time, when,
throughout the trial, it did not offer a word of evidence to establish it. Where in the record does it appear that the
prosecution offered a syllable of evidence to show that the accused committed fraud? Not only has the Government
not offered evidence of that character, but no other entity or person has offered any. Throughout the record there is
not a word of evidence on the subject. Has anyone testified to any fact showing fraud or deceit? Has the
prosecuting attorney testified as to what his agreement with the accused was? Has he shown that the accused
deceived him? Has the private prosecutor been sworn on the same subject? Has the judge himself testified that the
accused deceived him? Has any documentary evidence been offered to show the nature of the agreement or the
fact of fraud? To all of these questions: No. No one ever testified to the nature of the agreement that the accused
made with the Government; no one has testified that the Government officials were deceived; and nobody has
testified to any fact which would warrant the conclusion that the accused obtained his discharge by fraud and deceit.
The concurring opinion says: "It may be admitted that the language of the record is somewhat informal and lacking
in technical precision, but unless we are to look only to the form and not the substance, and unless we are to
demand an unreasonably high degree of technical precision in the annotation in the record of incidents occurring in
trial courts, etc., etc." I do not see the force of the expression "the language of the record is somewhat information
and lacking in technical precision." it is not formality or language that I complain of; it is the absence of evidence.
Nor do I understand what the concurring opinion means by "unless we are to demand an unreasonably high degree
of technical precision in the annotation in the record of incidents occurring in trial courts, etc., etc., etc.," If by that
language the writer means to commend the failure to prove and, therefore, to insert in the record, elements which
are essential to the conviction of the accused, or, if the writer proposes to ask the trial as well as the Supreme Court
to convict upon a record from which are missing the most essential and necessary parts, then I do not agree with
the proposition asserted. I do not consider it technical to require the Government to state its case against an
accused, I do not regard it technical to require the Government to proveits case against an accused. I do not regard
it as technical to require a record on appeal to contain the evidence upon which the accused was convicted and the
grounds upon which the court based its judgment. That the Supreme Court has not heretofore regarded these
requirements as technical is shown by its decisions.

In the case shown of United States vs. Quilatan (4 Phil. Rep., 481), the record did not contain the evidence taken
during the trial of the cause. With respect to that defect the court said: "When defendants appeal in criminal cases,
the entire record, including all of the proof, must be sent to this court, in accordance with the provisions of section
48. . . . this cause is hereby ordered to be returned to the clerk of the Court of First Instance of the Province of
Ambos Camarines, with directions to the Court of First instance of said province to proceed to a new trial against the
defendant."

Section 48 of the Code of Criminal Procedure referred to in the case just cited provides: "Upon an appeal being
taken, the clerk or judge of the court with whom the notice of appeal shall have been filed must, within five days after
the filing of the notice, transmit to the clerk of the court to which the appeal is taken the complete record in the case
together with the notice of the appeal," etc.

In the case of United States vs. Tan (4 Phil. rep., 625), it appeared that only a part of the evidence taken in the case
was sent up on appeal. The record being thus incomplete, the Solicitor-General made a motion that the appeal be
dismissed on the ground that the record in the appellate court did not contain the testimony of Alipio Gimano and
Claudio Casiguan and contained only a part of the testimony of Leoncio Dapitan, and that it was the duty of the
appellant to furnish a complete record. Resolving the question presented by the motion the court said: "The record
itself furnishes intrinsic evidence that the facts stated in the motion of the Solicitor-general are true, and it appears
that two witnesses testified at the trial in the court below whose testimony is not contained in the record before us,
and it also appears that a copy of their testimony can not be obtained so as to complete the record."

The court then cited section 48 of the Code of Criminal Procedure and continued: "It is thus made the duty of the
Government to cause a record to be kept of the proceedings in a criminal cause in the Court of First Instance, and
to cause that record to be transmitted to this court. This rule is, of course, radically different from the rule which
prevails in civil causes, and is also radically different from the rule which prevails in probably most of the United
States.

xxx xxx xxx

Upon an appeal to this court in a criminal cause we are required to examine the evidence and to enter the
judgment which ought to be entered. This can not be done unless we have before us all the evidence in the
case. In this case we have not all of that evidence, and it can not be obtained. The only thing that can be
done is to reverse the judgment and direct a new trial.

In the case of United States vs. Hollis (5 Phil. Rep., 531), a certain document was introduced in evidence by the
prosecution and marked Exhibit 2. This exhibit was not made a part the court said. "This document, Exhibit 2, does
not now appear in the record in this court. it has been lost; where or in what manner we are unable to say; they is no
positive proof that it was ever received by the clerk of this court. Whereas this document furnishes the principal
evidence in the cause against the defendant, and whereas it is necessary for this court to have the said document in
order that it may ascertain for itself whether the alleged indorsement is a forgery or not, we are unable to reach a
decision in the case without it and therefore hereby order the said cause to be returned to the inferior court for a
new trial."
In the case of United States vs. Dacanay (6 Phil. Rep., 367), the court said: "We do not have before us, therefore,
the evidence which was presented in the trial court. In accordance with the decisions in the cases of United States
vs. Pablo Tan (4 Phil. Rep., 625); United States vs. Hollis (5 Phil. Rep., 526); and United States vs. Quinlatan (4
Phil. Rep., 481), the judgment must be reversed as a new trial ordered."

In the case of United States vs. Talbanos (6 Phil. Rep., 541), the defendant pleaded guilty. In that case a dissent
was written by judge Carson, who is the writer of the opinion for the court in the present case, in which he said: "On
the other hand, if, as appears from the record and the judgment of the trial court further testimony was taken upon
which the judge exercised his discretion in imposing the death penalty, then all this evidence should be before us
when we are called upon to review the judgment of the court below. We are charged with the duty of examining the
record for the purpose of correcting error both of law and of fact, and this court has repeatedly held that it will not
affirm a judgment in a criminal case unless all the testimony taken at the trial is brought before it on appeal.
(U.S., vs. Pablo Tan, 4 Phil. Rep., 625; U.S. vs. Hollis, 5 Phil Rep., 526; and U.S. vs. Quilatan, 4 Phil. rep., 481.)"

The case of United States vs. Tan Yak (25 Phil. Rep., 116), was a deportation case in which the defendant appealed
from an order of deportation issued by the Court of First Instance of Zamboanga. To that cause, although in no
sense a criminal case, was applied the rule laid down by the decisions above cited.

The decision in that case, also written by Judge Carson, says; "The Solicitor-General in his brief admits or rather
asserts "that no notes of the testimony were taken in the court below," and we are satisfied not only from his
admission, but from a careful review of the whole record brought before us, that if any testimony was in fact taken, it
was not reduced to writing, and that it cannot therefore be certified to this court for review in accordance with the
practice in this jurisdiction."

For these reasons the court reversal the decision and returned the case for a new trial, holding that it was illegal for
this court to convict a defendant in a criminal case unless all of the evidence taken at the trial was before us in the
record; and that the appeal in a deportation case being the same as in a criminal case (according to the doctrine laid
down in the same case), the court had no authority to act until the record was complete.

It is the unchallenged doctrine, therefore, in this jurisdiction (or was until the present decision was written ) that the
Supreme Court cannot legally convict in criminal action without having before it the entire record, including all of the
evidence upon which the trial court acted in its conviction of the accused. It is also the unchallenged doctrine (or
was before the opinion in this case was written) that it is the duty of the Government, when an appeal is taken in a
criminal case, to make up a complete record of the trial, including the evidence on which the trial court based its
judgment of conviction. Heretofore, whenever the record, in a criminal case, has been found by this court to be in
any way incomplete, the judgment of conviction has been reversed and a new trial ordered. We have even gone so
far, as we have seen, as to apply this doctrine to deportation cases also; and it is now the rule that, in such cases,
the Government of the Philippine Islands must itself, at its own expense, make up the record on appeal.

These cases, and the doctrine therein laid down bring us to the fifth error of the concurring opinion (also an error of
the majority opinion), which consists in the insistence of those opinions that the accuse be convicted on a record
which both opinions admit to be incomplete and not to contain, so far as the plea of the accused is concerned, the
most important of all the testimony taken during the trial of the cause. Certain it is, if the previous decisions of this
court mean anything, that the accused ought to have a new trial, or at least a correction and perfection of the record,
inasmuch as, according to the claim of the concurring opinion, and necessarily of the majority opinion also, the most
important evidence relative to the plea of the accused which it is claimed was before the trial court and upon which it
based its decision is not a part of the record on appeal and is, therefore, not before this court. In spite of the
decision referred to, however, the accused in convicted on an incomplete record, from which, according to the
contention of the concurring as well as the majority opinion, is omitted the most important part of the evidence taken
in the court below.

In view of these decisions and the condition of the record on appeal, I am unable to find justification for the decision
in this case.

The concurring opinion seeks to demonstrate that the decision of the court is well founded, and, to do this, it
attempts to show that there was evidence introduced in the court below which, if here, would support it. But no
allusion is made to the proposition that, for such evidence to be of any value for that purpose on appeal, it is
necessary that it be in the record before this court. The fact that such evidence was introduced on the trial, if it is a
fact, is of no consequence when the case arrives in the Supreme Court. To be worth anything the evidence must be
in the record. Evidence which is introduced on the trial but left in the court below, that is, not brought up on appeal,
is valueless, and can produced no effect in this court. That this is so is the unchallenged doctrine of this court as laid
down in the decisions cited and is the statutory law of the country as found in section 48 of the Code of criminal
Procedure. It is undisputed, as it is a physical fact and appears instantly and conclusively on examining the record
on this appeal, that the evidence to which the concurring opinion alludes as that which supports the opinion of the
court is not in the record on this appeal. The record on this appeal consists only of the information, warrant of arrest,
return, arraignment and plea of the accused, the evidence, including Exhibit A of the prosecution already referred to,
which is simply a statement made by the accused when brought before the justice of the peace at the time of his
arrest, the judgment of conviction and sentence, and the notice of appeal. This is all that the record in this court
contains. Neither the record in case No. 3983, nor any part thereof, nor the 'notes of the evidence" in that case,
referred to in the quotation in the concurring opinion, is in the record in this court, nor are they before this court in
any form or manner. Now, let us take into consideration these two facts, namely, that (1) no part of the record of
case No. 3983 is before this court and (2) the fact that it is the uniform doctrine of this court that an accused cannot
be convicted by this court when the record does not contain all of the evidence taken in the court below, or when the
record is in any manner incomplete, and then let us ask ourselves the question: How can the conviction of the
accused be justified on this record? And of what materiality is the claim that "in the absence of any objection on the
part of the accused, this court accepted the relation of facts set forth in the opinion of the trial judge as a correct
report of the incident relied upon by counsel for the appellant in support of his contention that the trial court erred in
construing these facts as it did" and "if that part of the court's findings which relates to the dismissal of the
information against the accused in the former case be accepted, why not, in the absence of any objection, accept
the other part relating to the circumstances leading up to and subsequent to the dismissal?" These statements
ignore, in my humble opinion, the rule laid down in the cases cited. It is of no consequence what the trial court puts
in its judgment of conviction. The supreme Court is trial court, i.e., it tries cases de novo on the record,
(Serra vs. Mortiga, 204 U.S., 4790; 11 Phil. Rep., 762; Kepner vs.United States, 195 U.S., 100; 11 Phil. Rep., 669)
and as such must have evidence, proved facts, and not the opinion of a trial court as to what the fact are. It cannot
convict on the mere say so of trial court. It cannot abdicate its functions as a court which decides on evidence and
permit a trial court to exercise those functions for it. It has no right to accept the findings of fact of the trial court in
criminal case as the real facts established by the evidence. This court has steadily and uniformly held that
it must have the evidence before it before it can discharge its duty according to justice and the law. (See cases
cited.) Yet, in full view of these decisions, the accused is convicted of murder and is sent to penal servitude for life
upon a record which was not sufficient to sustain a conviction for homicide in United States vs. Quilatan, or
brigandage in United States vs. Tan, or forgery in United States vs. Hollis, or to deport a Chinaman in United States
vs. Tan Yak. Even admitting the widest claims of the concurring opinion, namely, that the record of case No. 3983
was introduced in evidence in the trial court,all admit that such record is not a part of the record on this
appeal. Does not that fact alone preclude a conviction on the record as it stands? According to the decisions of this
court, upon which all men accused of crime have a right to rely in defending themselves, must not the accused have
a new trial, or must not the record be made complete before his life is closed like a book? What is there about this
case which requires the judges of this court to treat it differently from other cases in like condition? Why should
Venancio de Guzman be convicted of murder on a record which was not sufficient to deport Tan Yak? Why should
he be sent to prison for life on a record that this court held was too defective to permit the conviction of Hollis for
forgery?

The statement and claim made by the concurring opinion that the record of case NO. 3983 was considered by the
trial court with the consent of the accused is equally without foundation with the statement already referred to "that
the record of the former case No. 3983 was before the trial judge when he rendered his decision in this case, and
that the record was submitted by the accused himself," and that "the facts above set forth were not challenged or
controverted by the accused who himself offered the record in support of his plea." These statements, as we have
seen, are disproved by the quotation from the record as made in the opinion itself. But, aside from that, the claim is,
I believe, without merit when we consider the object to be gained by getting the record of case No. 3983 before the
trial court and his court. That object is to obtain facts which will show fraud and deceit on the part of the accused in
obtaining his discharge in that case, and thus sustain the decision of this court in that regard. But such object is
seen to be impossible of attainment when we recall that there was no question of fraud raised by the Government,
or by anybody else for that matter, throughout the trial of the case; and the reasoning is seen to be specious and
groundless when we call to mind the fact, which stands out in this case as clear as the sun at noonday, that it is
legally impossible that fraud or deceit be an issue or even a question in this case. If fraud is not and cannot be a
question in this case, what justification can there be for being a conviction upon it and especially for attempting to
get into the record evidence to establish fraud? It is futile to insist on there being evidence of fraud in the record
when there is no issue or question of fraud in the case. That no such question or issue can be in the case is beyond
dispute. As I have already observed, the Government did not raise that question or present that issue at any time
during the trial and introduced no evidence whatever in relation thereto. The accused had no notice at any stage of
the trial that question was in the case and no issue was ever created in respect thereto. But, in addition to this proof
that no such question was in the case, we have the fact that the possibility of such a question being in the case was
eliminated at the very beginning of the trial by the court dismissing defendant's plea on the ground that he had not
been in jeopardy in case No. 3983 and thereby wiping the plea and everything in connection with it entirely from the
case, so far as that trial was concerned. At the opening of the trial the accused made the plea of former discharge
and asked to have the case against him dismissed on that ground. The court held the plea bad on the ground that
the accused had not been in jeopardy in the former case. That holding eliminated from the case, so far as the
Government was concerned, the plea and everything connected with it. Thereafter, so far as the Government was
concerned, it was not an issue, was not a question in the case, and no evidence could be introduced concerning it,
no decision could be based upon it and nothing could be done further unless the court reversed its first ruling with
regard to it. Until reversed that was conclusive. It being in favor of the Government and entirely destroying the plea
itself, the Government could do nothing more. it is evidence that, if a special defense set up in an answer is
dismissed on demurrer or stricken out or disallowed on motion, no evidence to sustain that defense is admissible on
the trial. So, when the special defense urged in this case, viz, the plea in bar, was stricken out or disallowed on
motion, no evidence to sustain or destroy it was admissible on the trial. The next question to be raised was one in
this court on appeal to determine whether the action of the trial court overruling and dismissing the plea was correct.

It being evidence that the plea was destroyed and wiped out of the case by the decision of the court dismissing it,
where is the point of the attempt to show a destruction of the plea on the trial by obtained by fraud and deceit? And
to what purpose is the argument of the concurring opinion that there was evidence introduced during the trialto
destroy the plea? The plea, so far as that particular trial was concerned, was destroyed and wiped out by the
decision of the court upon it; and that decision was made before the trial began. Now, if the plea was destroyed and
wiped entirely out of the case before the trial began, what possible purpose could there be in trying to destroy it after
the trial began? The plea having been annihilated before the trial, could not be a question during the trial, as it was
not in existence; and the talk about evidence having been introduced to destroy it is, it seems to me, without point.
Until the trial court reversed its own ruling on the plea, neither the plea nor anything in connection with it could have
been a question in the case during the trial. That decision eliminated the plea from the case and it remained so and
will remain so, as this court does not reverse that decision. I believe the court unanimous in the belief that the trial
court erred in dismissing the plea upon the ground of former jeopardy, as former jeopardy had nothing to do with the
question raised by the plea.

What has already been said disposes of the contention that "the case has been submitted to this Supreme Court for
review by both parties upon the theory that the comment contained in the judgment below upon the evidence
introduced by the accused in support of his plea in bar was a true resume thereof." In my judgment, the remarks in
question about the "theory" of the case have no real foundation How could the theory of the case be such as stated?
The accused was charged with murder. Before the trial began he filed a plea in bar based on a former discharge
under the same information. The facts upon which the plea was based were admitted and, therefore, no evidence
was offered or received to prove them. The Government made no reply of fraud to the plea or the facts; offered no
defense of fraud; made no allegation of fraud; said and did nothing which even hinted at fraud. On the contrary, it
took the position that the plea was bad, erroneously assuming that the plea was "once in jeopardy" under section 24
of the Code of Criminal Procedure instead of plea in bar under section 34 and 36 thereof; and that it should be
dismissed, as, according to the admitted facts, the accused had not been in jeopardy in the former case (No 3983).
The court took the Government's view of it and disallowed the plea. Not one word of fraud, not a hint of it. The plea
having been eliminated from the case, the trial began on the merits. Now, on that trial, with the plea out of the case
completely, can it be contended that evidence of fraud on the part of the accused in obtaining his discharged was
admissible? or that such fraud was an element or an issue in the case? or that such fraud was the "theory" of the
case? or that the "accused himself introduced evidence" of his own fraud? The plea being out of the case entirely,
no one thought of fraud. What would have been the use of raising the question of fraud to kill a plea which
was already dead, having been completely killed by the theory of "once in jeopardy?" And yet, in the face of this, it is
urged that "the case has been submitted to this Supreme Court . . . upon the theory that the comment contained in
the judgment below," showing fraud and deceit, "was a true resume thereof." The accused appealed from the
judgment of conviction and the order overruling and dismissing his plea, on the ground that they were both
erroneous. On such an appeal how can the issue of fraud arise and how can the "theory" of the case be fraud and
deceit?

It is urged in the concurring opinion that counsel for the defense, in his brief, in this court admitted that the accused
had deceived the court, and it quotes from the brief to substantiate that claim. As is seen from reading the part
quoted and especially the context, the statement was made in an argumentive way and without any intent or
expectation that it would be taken as an admission that his client had deceived the Government. The language itself
is ambiguous and it cannot be said with certainty whether the idea intended to be conveyed is that the prosecuting
attorney deceived himself or that he was deceived with or without the fault of the accused. The brief is in Spanish,
and better sense would be given to the language by putting the first sentence in the conditional. It would then read,
in substance: "If the fiscal was deceived by the accused as to what he would testify in the case, let him charge the
accused with the crime which his fraudulent acts constituted but do not let him be prosecuted over again for the
same crime." As will be seen from a careful reading of the quotation, the version I have given makes better sense
than the translation in the concurring opinion. Besides, it will not readily be assumed that counsel, in a murder case,
has admitted the guilt of the accused or has conceded a fact which deprives the case of his client of all virtue.

It is also urged that the accused made no objection to the consideration by the court of the charge of fraud against
him. This claim is, in my judgment, specious. The accused is here claiming that the action against him is barred by
the fact that he had been previously discharged upon an indictment charging him with the same offense and that
such discharge constituted an acquittal. Yet it is claimed by the concurring opinion that he does not object to the
assumption by the Government, without proof, of facts which will absolutely destroy the defense which he is making.
But even if it be well based, what is the result? If the question is put, Why did not the accused object in the court
below to the use by the Government of such facts? the simple answer is that never throughout the trial did the
Government allege or claim that the accused had committed a fraud against it and had obtained his discharge by
that means. If the further question be asked, Why did he not make an objection in this court? the answer is, in the
first place, such an objection was inherent in the nature of his defense and it was not necessary, in order to bring it
to the attention of this court, to make it specially; in the second place, the Attorney-General, the accredited
representative of the Government, filed a brief in this court to the effect that the accused was entitled to be acquitted
on his plea and that it made no difference whether he had deceived the Government into his discharge or not. There
was never any contention in this court by anybody that the accused could be convicted in this case. Both his
attorney and the attorney for the Government were agreed upon the proposition that his discharge in the former
case was a bar and that he should be acquitted. This fact may have induced the attorney for the defense not to urge
separately and with force and vigor all of the points which his client was entitled to have urged on the hearing.
Enough was presented by him, however, to require this court to determine the case on the merits without attempting
to extract from the defendant's brief doubtful admissions for the purpose of convicting him of murder, or interpolate
into the record matters which were not put there on the trial.

I again assert that it is my opinion that there is no evidence in the record in this case to sustain the fundamental
basis of the decision of this court, that the accused obtained his discharge in case No. 3983 by false and fraudulent
representations and deceit.

The proposition that the Government may withdraw its agreement with an accused, set aside its order dismissing
the case against him, that is, its judgment of acquittal, and try him upon the same charge, on the ground, not that he
has not testified to the truth, but that he has not testified as he had agreed with the Government officials, or that he
did not testify as they expected him to, I do not now stop to discuss at length. I believe, however, that in order to
leave the matter open, I should suggest, with the Solicitor-General, who recommends that the accused be
discharged on the ground that sections 34 and 36 are absolutely conclusive of this case, that "section 36 is
unconditional; it is not made dependent upon the fact whether or not the defendant discharged had entered his plea,
whether witnesses had been examined, whether the party discharged deceived the fiscal or his own attorney, or
whether his evidence was useful to the prosecution or otherwise. If section 36 is too broad and 'gives too much
leeway to practice fraud on the prosecuting attorney and the court' it becomes the duty of the legislative branch of
the Government to amend it; it is not a function of the courts to add to or to take from the plain and unambiguous
language of the law. . . . The law does not make the discharge referred to in section 34 operative as a contract
between the fiscal and the party discharged. It plainly says that the court may direct any defendant to be discharged
that he may be a witness for the United States, and that such order shall amount to an acquittal of the defendant
discharged and shall be a bar to a future prosecution for the same offense."

I also believe it my duty to suggest that the makers of the Code of Criminal Procedure knew thoroughly the
conditions in this country relative to the administration of justice and that the power of public prosecutors to make
the acquittal of the accused depend upon how he testifies is one of the most powerful inducements to corruption
and most effective agencies of fraud and perjury that could be placed in his hands. It is dangerous enough to
permits public prosecutors to make agreements with criminals to testify against their fellow in consideration of
granting them absolute immunity, that is, immunity which can never be revoked; but when to that power is added the
right of public prosecutors to withdraw that immunity when the witness does not testify to suit their purpose, in other
words, when public prosecutors are permitted to make the immunity of the accused depend upon the kind of
testimony he gives, there is presented a condition which is full of danger.

Knowing so thoroughly the condition existing in this country, it would seem, from the language of section 36, that the
makers of the code in which that section is found intended to use language so clear, explicit and powerful as to
place its meaning beyond the pale of discussion. Section 36 uses two of the strongest words known to the language
of the law in describing the efforts of the dismissal of the case against the accused for the purpose of using him as a
witness for the Government. It provides, first, that the discharge "shall amount to an acquittal of the defendant
discharged" and, second, "shall be a bar to future prosecution for the same offense." Stronger and more explicit
language it is impossible to use and I call attention to it not be considered lightly nor deprived easily of its
signification.

I do not desire, however, to express an opinion upon this phase of the case. That the accused should be acquitted
upon the other branch of the case already discussed at length is so clear and undoubted that I have not given this
branch sufficient attention to warrant a deliberate opinion.

For these reasons I dissent.

G.R. No. L-15045 January 20, 1961

IN RE: PETITION FOR EXEMPTION FROM COVERAGE BY THE SOCIAL SECURITY SYSTEM. ROMAN
CATHOLIC ARCHBISHOP OF MANILA, petitioner-appellant,
vs.
SOCIAL SECURITY COMMISSION, respondent-appellee.

Feria, Manglapus and Associates for petitioner-appellant.

Legal Staff, Social Security System and Solicitor General for respondent-appellee.

GUTIERREZ DAVID, J.:

On September 1, 1958, the Roman Catholic Archbishop of Manila, thru counsel, filed with the Social Security
Commission a request that "Catholic Charities, and all religious and charitable institutions and/or organizations,
which are directly or indirectly, wholly or partially, operated by the Roman Catholic Archbishop of Manila," be
exempted from compulsory coverage of Republic Act No. 1161, as amended, otherwise known as the Social
Security Law of 1954. The request was based on the claim that the said Act is a labor law and does not cover
religious and charitable institutions but is limited to businesses and activities organized for profit. Acting upon the
recommendation of its Legal Staff, the Social Security Commission in its Resolution No. 572, series of 1958, denied
the request. The Roman Catholic Archbishop of Manila, reiterating its arguments and raising constitutional
objections, requested for reconsideration of the resolution. The request, however, was denied by the Commission in
its Resolution No. 767, series of 1958; hence, this appeal taken in pursuance of section 5(c) of Republic Act No.
1161, as amended.

Section 9 of the Social Security Law, as amended, provides that coverage "in the System shall be compulsory upon
all members between the age of sixteen and sixty rears inclusive, if they have been for at least six months a the
service of an employer who is a member of the System, Provided, that the Commission may not compel any
employer to become member of the System unless he shall have been in operation for at least two years and has at
the time of admission, if admitted for membership during the first year of the System's operation at least fifty
employees, and if admitted for membership the following year of operation and thereafter, at least six employees x x
x." The term employer" as used in the law is defined as any person, natural or juridical, domestic or foreign, who
carries in the Philippines any trade, business, industry, undertaking, or activity of any kind and uses the services of
another person who is under his orders as regards the employment, except the Government and any of its political
subdivisions, branches or instrumentalities, including corporations owned or controlled by the Government" (par. [c],
see. 8), while an "employee" refers to "any person who performs services for an 'employer' in which either or both
mental and physical efforts are used and who receives compensation for such services" (par. [d], see. 8).
"Employment", according to paragraph [i] of said section 8, covers any service performed by an employer except
those expressly enumerated thereunder, like employment under the Government, or any of its political subdivisions,
branches or instrumentalities including corporations owned and controlled by the Government, domestic service in a
private home, employment purely casual, etc.

From the above legal provisions, it is apparent that the coverage of the Social Security Law is predicated on the
existence of an employer-employee relationship of more or less permanent nature and extends to employment of all
kinds except those expressly excluded.

Appellant contends that the term "employer" as defined in the law should — following the principle of ejusdem
generis — be limited to those who carry on "undertakings or activities which have the element of profit or gain, or
which are pursued for profit or gain," because the phrase ,activity of any kind" in the definition is preceded by the
words "any trade, business, industry, undertaking." The contention cannot be sustained. The rule ejusdem
generis applies only where there is uncertainty. It is not controlling where the plain purpose and intent of the
Legislature would thereby be hindered and defeated. (Grosjean vs. American Paints Works [La], 160 So. 449). In
the case at bar, the definition of the term "employer" is, we think, sufficiently comprehensive as to include religious
and charitable institutions or entities not organized for profit, like herein appellant, within its meaning. This is made
more evident by the fact that it contains an exception in which said institutions or entities are not included. And,
certainly, had the Legislature really intended to limit the operation of the law to entities organized for profit or gain, it
would not have defined an "employer" in such a way as to include the Government and yet make an express
exception of it.

It is significant to note that when Republic Act No. 1161 was enacted, services performed in the employ of
institutions organized for religious or charitable purposes were by express provisions of said Act excluded from
coverage thereof (sec. 8, par. [j] subpars. 7 and 8). That portion of the law, however, has been deleted by express
provision of Republic Act No. 1792, which took effect in 1957. This is clear indication that the Legislature intended to
include charitable and religious institutions within the scope of the law.

In support of its contention that the Social Security Law was intended to cover only employment for profit or gain,
appellant also cites the discussions of the Senate, portions of which were quoted in its brief. There is, however,
nothing whatsoever in those discussions touching upon the question of whether the law should be limited to
organizations for profit or gain. Of course, the said discussions dwelt at length upon the need of a law to meet the
problems of industrializing society and upon the plight of an employer who fails to make a profit. But this is readily
explained by the fact that the majority of those to be affected by the operation of the law are corporations and
industries which are established primarily for profit or gain.

Appellant further argues that the Social Security Law is a labor law and, consequently, following the rule laid down in
the case of Boy Scouts of the Philippines vs. Araos (G.R. No. L-10091, January 29, 1958) and other cases1, applies
only to industry and occupation for purposes of profit and gain. The cases cited, however, are not in point, for the
reason that the law therein involved expressly limits its application either to commercial, industrial, or agricultural
establishments, or enterprises. .

Upon the other hand, the Social Security Law was enacted pursuant to the "policy of the Republic of the Philippines
to develop, establish gradually and perfect a social security system which shall be suitable to the needs of the
people throughout the Philippines and shall provide protection to employees against the hazards of disability,
sickness, old age and death." (See. 2, Republic Act No. 1161, as amended.) Such enactment is a legitimate
exercise of the police power. It affords protection to labor, especially to working women and minors, and is in full
accord with the constitutional provisions on the "promotion of social justice to insure the well-being and economic
security of all the people." Being in fact a social legislation, compatible with the policy of the Church to ameliorate
living conditions of the working class, appellant cannot arbitrarily delimit the extent of its provisions to relations
between capital and labor in industry and agriculture.

There is no merit in the claim that the inclusion of religious organizations under the coverage of the Social Security
Law violates the constitutional prohibition against the application of public funds for the use, benefit or support of
any priest who might be employed by appellant. The funds contributed to the System created by the law are not
public funds, but funds belonging to the members which are merely held in trust by the Government. At any rate,
assuming that said funds are impressed with the character of public funds, their payment as retirement death or
disability benefits would not constitute a violation of the cited provisions of the Constitution, since such payment
shall be made to the priest not because he is a priest but because he is an employee.

Neither may it be validly argued that the enforcement of the Social Security Law impairs appellant's right to
disseminate religious information. All that is required of appellant is to make monthly contributions to the System for
covered employees in its employ. These contributions, contrary to appellant's contention, are not in the nature of
taxes on employment." Together with the contributions imposed upon the employees and the Government, they are
intended for the protection of said employees against the hazards of disability, sickness, old age and death in line
with the constitutional mandate to promote social justice to insure the well-being and economic security of all the
people.

IN VIEW OF THE FOREGOING, Resolutions Nos. 572 kind 767, series of 1958, of the Social Security Commission
are hereby affirmed. So ordered with costs against appellant.
Paras, C.J., Padilla, Bautista Angelo, Paredes and Dizon, JJ., concur.
Concepcion, Reyes, J.B.L. and Barrera, JJ., concur in the result.
Bengzon, J., reserves his vote.

[G.R. No. L-28771. March 31, 1971.]

CORNELIA MATABUENA, Plaintiff-Appellant, v. PETRONILA CERVANTES, Defendant-Appellee.

Alegre, Roces, Salazar & Sañez, for Plaintiff-Appellant.

Fernando Gerona, Jr., for Defendant-Appellee.

SYLLABUS

1. CIVIL LAW; PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE; DONATIONS BY REASON OF MARRIAGE;
PROHIBITION AGAINST DONATION BETWEEN SPOUSES DURING MARRIAGE; APPLICABLE TO COMMON LAW RELATIONSHIP.
— While Art. 133 of the Civil Code considers as void a "donation between the spouses during the marriage", policy
considerations of the most exigent character as well as the dictates of morality require that the same prohibition should
apply to a common-law relationship. A 1954 Court of Appeals decision Buenaventura v. Bautista, (50 O.G. 3679) interpreting
a similar provision of the old Civil Code speaks unequivocally. If the policy of the law is, in the language of the opinion of the
then Justice J.B.L. Reyes of that Court, "to prohibit donations in favor of the other consort and his descendants because of
fear of undue and improper pressure and influence upon the donor, a prejudice deeply rooted in our ancient law; ‘porque no
se engañen despojandose el uno al otro por amor que han de consuno,’ [according to] the Partidas (Part. IV, Tit. Xl, LAW
IV), reiterating the rationale ‘Ne mutuato amore invicem spoliarentur’ of the Pandects (Bk 24, Tit. I, De donat, inter virum et
uxorem); then there is every reason to apply the same prohibitive policy to persons living together as husband and wife
without benefit of nuptials. For it is not to be doubted that assent to such irregular connection for thirty years bespeaks
greater influence of one party over the other, so that the danger that the law seeks to avoid is correspondingly increased.
Moreover, as already pointed out by Ulpian (in his lib. 32 ad Sabinum, fr. 1), it would not be just that such donations should
subsist lest the condition of those who incurred guilt should turn out to be better. So long as marriage remains the
cornerstone of our family law, reason and morality alike demand that the disabilities attached to marriage should likewise
attach to concubinage.

2. ID.; SUCCESSION; INTESTATE SUCCESSION; SURVIVING SPOUSE; RULE WHERE A SISTER SURVIVES WITH THE WIDOW.
— The lack of validity of the donation made b~ the deceased to defendant Petronila Cervantes does not necessarily result in
plaintiff having exclusive right to the disputed property. Prior to the death of Felix Matabuena, the relationship between him
and the defendant was legitimated by their marriage on March 28. 1962. She is therefore his widow. As provided in the Civil
Code, she is entitled to one-half of the inheritance and the plaintiff, as the surviving sister to the other half.

DECISION

FERNANDO, J.:

A question of first impression is before this Court in this litigation. We are called upon to decide whether the ban on a
donation between the spouses during a marriage applies to a common-law relationship. 1 The plaintiff, now appellant
Cornelia Matabuena, a sister to the deceased Felix Matabuena, maintains that a donation made while he was living maritally
without benefit of marriage to defendant, now appellee Petronila Cervantes, was void. Defendant would uphold its validity.
The lower court, after noting that it was made at a time before defendant was married to the donor, sustained the latter’s
stand. Hence this appeal. The question, as noted, is novel in character, this Court not having had as yet the opportunity of
ruling on it. A 1954 decision of the Court of Appeals, Buenaventura v. Bautista, 2 by the then Justice J. B. L. Reyes, who was
appointed to this Court later that year, is indicative of the appropriate response that should be given. The conclusion reached
therein is that a donation between common-law spouses falls within the prohibition and is "null and void as contrary to public
policy." 3 Such a view merits fully the acceptance of this Court. The decision must be reversed.

In the decision of November 23, 1965, the lower court, after stating that in plaintiff’s complaint alleging absolute ownership
of the parcel of land in question, she specifically raised the question that the donation made by Felix Matabuena to defendant
Petronila Cervantes was null and void under the aforesaid article of the Civil Code and that defendant on the other hand did
assert ownership precisely because such a donation was made in 1956 and her marriage to the deceased did not take place
until 1962, noted that when the case was called for trial on November 19, 1965, there was stipulation of facts which it
quoted. 4 Thus: "The plaintiff and the defendant assisted by their respective counsels, jointly agree and stipulate: (1) That
the deceased Felix Matabuena owned the property in question; (2) That said Felix Matabuena executed a Deed of Donation
inter vivos in favor of Defendant, Petronila Cervantes over the parcel of land in question on February 20, 1956, which same
donation was accepted by defendant; (3) That the donation of the land to the defendant which took effect immediately was
made during the common law relationship as husband and wife between the defendant-done and the now deceased donor
and later said donor and done were married on March 28, 1962; (4) That the deceased Felix Matabuena died intestate on
September 13, 1962; (5) That the plaintiff claims the property by reason of being the only sister and nearest collateral
relative of the deceased by virtue of an affidavit of self-adjudication executed by her in 1962 and had the land declared in
her name and paid the estate and inheritance taxes thereon’" 5

The judgment of the lower court on the above facts was adverse to plaintiff. It reasoned out thus: "A donation under the
terms of Article 133 of the Civil Code is void if made between the spouses during the marriage. When the donation was made
by Felix Matabuena in favor of the defendant on February 20, 1956, Petronila Cervantes and Felix Matabuena were not yet
married. At that time they were not spouses. They became spouses only when they married on March 28, 1962, six years
after the deed of donation had been executed." 6

We reach a different conclusion. While Art. 133 of the Civil Code considers as void a "donation between the spouses during
the marriage," policy considerations of the most exigent character as well as the dictates of morality require that the same
prohibition should apply to a common-law relationship. We reverse.

1. As announced at the outset of this opinion, a 1954 Court of Appeals decision, Buenaventura v. Bautista, 7 interpreting a
similar provision of the old Civil Code 8 speaks unequivocally. If the policy of the law is, in the language of the opinion of the
then Justice J.B.L. Reyes of that Court, "to prohibit donations in favor of the other consort and his descendants because of
fear of undue and improper pressure and influence upon the donor, a prejudice deeply rooted in our ancient law; ‘porque no
se engañen despojandose el uno al otro por amor que han de consuno [according to] the Partidas (Part IV, Tit. XI, LAW IV),
reiterating the rationale ‘Ne mutuato amore invicem spoliarentur’ of the Pandects (Bk. 24, Tit. 1, De donat, inter virum et
uxorem); then there is every reason to apply the same prohibitive policy to persons living together as husband and wife
without the benefit of nuptials. For it is not to be doubted that assent to such irregular connection for thirty years bespeaks
greater influence of one party over the other, so that the danger that the law seeks to avoid is correspondingly increased.
Moreover, as already pointed out by Ulpian (in his lib. 32 ad Sabinum, fr. 1), ‘it would not be just that such donations should
subsist, lest the condition of those who incurred guilt should turn out to be better.’ So long as marriage remains the
cornerstone of our family law, reason and morality alike demand that the disabilities attached to marriage should likewise
attach to concubinage." 9

2. It is hardly necessary to add that even in the absence of the above pronouncement, any other conclusion cannot stand the
test of scrutiny. It would be to indict the framers of the Civil Code for a failure to apply a laudable rule to a situation which in
its essentials cannot be distinguished. Moreover, if it is at all to be differentiated, the policy of the law which embodies a
deeply-rooted notion of what is just and what is right would be nullified if such irregular relationship instead of being visited
with disabilities would be attended with benefits. Certainly a legal norm should not be susceptible to such a reproach. If there
is ever any occasion where the principle of statutory construction that what is within the spirit of the law is as much a part of
it as what is written, this is it. Otherwise the basic purpose discernible in such codal provision would not be attained.
Whatever omission may be apparent in an interpretation purely literal of the language used must be remedied by an
adherence to its avowed objective. In the language of Justice Pablo: "El espiritu que informa la ley debe ser la luz que ha de
guiar a los tribunales en la aplicación de sus disposiciones.’’ 10

3. The lack of validity of the donation made by the deceased to defendant Petronila Cervantes does not necessarily result in
plaintiff having exclusive right to the disputed property. Prior to the death of Felix Matabuena, the relationship between him
and the defendant was legitimated by their marriage on March 28, 1962. She is therefore his widow. As provided for in the
Civil Code, she is entitled to one-half of the inheritance and the plaintiff, as the surviving sister, to the other half. 11

WHEREFORE, the lower court decision of November 23, 1965 dismissing the complaint with costs is reversed. The questioned
donation is declared void, with the rights of plaintiff and defendant as pro indiviso heirs to the property in question
recognized. The case is remanded to the lower court for its appropriate disposition in accordance with the above opinion.
Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Barredo, Villamor and Makasiar,JJ., concur.

Teehankee, J, took no part.

 [G.R. No. 127116. April 8, 1997]

ALEX L. DAVID, in his own behalf as Barangay Chairman of Barangay 77, Zone 7,
Kalookan City and as President of the LIGA NG MGA BARANGAY SA
PILIPINAS, petitioner, vs. COMMISSION ON ELECTIONS, THE HONORABLE
SECRETARY, Department of Interior and Local Government, and THE
HONORABLE SECRETARY, Department of Budget and
Management, respondents.

[G.R. No. 128039. April 8, 1997]

LIGA NG MGA BARANGAY QUEZON CITY CHAPTER, Represented by

BONIFACIO M. RILLON, petitioner, vs. COMMISSION ON ELECTIONS and
DEPARTMENT OF BUDGET AND MANAGEMENT, respondents.

DECISION
PANGANIBAN, J.:

The two petitions before us raise a common question: How long is the term of office of barangay
chairmen and other barangay officials who were elected to their respective offices on the second
Monday of May 1994? Is it three years, as provided by RA 7160 (the Local Government Code) or five
years, as contained in RA 6679? Contending that their term is five years, petitioners ask this Court to
order the cancellation of the scheduled barangay election this coming May 12, 1997 and to reset it to
the second Monday of May, 1999.

The Antecedents

G.R. No. 127116

In his capacity as barangay chairman of Barangay 77, Zone 7, Kalookan City and as president of
the Liga ng mga Barangay sa Pilipinas, Petitioner Alex L. David filed on December 2, 1996 a petition
for prohibition docketed in this Court as G.R. No. 127116, under Rule 65 of the Rules of Court, to
prohibit the holding of the barangay election scheduled on the second Monday of May 1997. On
January 14, 1997, the Court resolved to require the respondents to comment on the petition within a
non-extendible period of fifteen days ending on January 29, 1997.
 On January 29, 1997, the Solicitor General filed his four-page Comment siding with petitioner and
praying that the election scheduled on May 12, 1997 be held in abeyance.Respondent Commission
on Elections filed a separate Comment, dated February 1, 1997 opposing the petition. On February
11, 1997, the Court issued a Resolution giving due course to the petition and requiring the parties to
file simultaneous memoranda within a non-extendible period of twenty days from notice. It also
requested former Senator Aquilino Q. Pimentel, Jr. to act as amicus curiae and to file a memorandum
[1]

also within a non-extendible period of twenty days. It noted but did not grant petitioners Urgent Motion
for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction dated January 31,
1997 (as well as his Urgent Ex-Parte Second Motion to the same effect, dated March 6,
1997). Accordingly, the parties filed their respective memoranda. The Petition for Leave to Intervene
filed on March 17, 1997 by Punong Barangay Rodson F. Mayor was denied as it would just unduly
delay the resolution of the case, his interest like those of all other barangay officials being already
adequately represented by Petitioner David who filed this petition as president of the Liga ng mga
Barangay sa Pilipinas.

G.R. No. 128039

On February 20, 1997, Petitioner Liga ng mga Barangay Quezon City Chapter represented by its
president Bonifacio M. Rillon filed a petition, docketed as G.R. No. 128039, to seek a judicial review
by certiorari to declare as unconstitutional:

1. Section 43(c) of R.A. 7160 which reads as follows:

(c) The term of office of barangay officials and members of the sangguniang kabataan shall be for
three (3) years, which shall begin after the regular election of barangay officials on the second
Monday of May 1994.

2. COMELEC Resolution Nos. 2880 and 2887 fixing the date of the holding of the barangay
elections on May 12, 1997 and other activities related thereto;

3. The budgetary appropriation of P400 million contained in Republic Act No. 8250 otherwise
known as the General Appropriations Act of 1997 intended to defray the costs and expenses in
holding the 1997 barangay elections; [2]

Comelec Resolution 2880, promulgated on December 27, 1996 and referred to above, adopted
[3]

a Calendar of Activities and List and Periods of Certain Prohibited Acts for the May 12, 1997
Barangay Elections. On the other hand, Comelec Resolution 2887 promulgated on February 5, 1997
moved certain dates fixed in Resolution 2880. [4]

Acting on the petition, the Court on February 25, 1997 required respondents to submit their
comment thereon within a non-extendible period of ten days ending on March 7, 1997. The Court
further resolved to consolidate the two cases inasmuch as they raised basically the same
issue. Respondent Commission filed its Comment on March 6, 1997 and the Solicitor General, in
[5]

representation of the other respondent, filed his on March 6, 1997. Petitioners Urgent Omnibus
Motion for oral argument and temporary restraining order was noted but not granted. The petition was
deemed submitted for resolution by the Court without need of memoranda.

The Issues
 Both petitions though worded differently raise the same ultimate issue: How long is the term of
office of barangay officials?
Petitioners contend that under Sec. 2 of Republic Act No. 6653, approved on May 6, 1988, (t)he
[6]

term of office of barangay officials shall be for five (5) years x x x. This is reiterated in Republic Act
No. 6679, approved on November 4, 1988, which reset the barangay elections from the second
Monday of November 1988 to March 28, 1989 and provided in Sec. 1 thereof that such five-year term
shall begin on the first day of May 1989 and ending on the thirty-first day of May 1994. Petitioners
further aver that although Sec. 43 of RA 7160 reduced the term of office of all local elective officials
[7]

to three years, such reduction does not apply to barangay officials because (1) RA 6679 is a special
law applicable only to barangays while RA 7160 is a general law which applies to all other local
government units; (2) RA 7160 does not expressly or impliedly repeal RA 6679 insofar as the term of
barangay officials is concerned; (3) while Sec. 8 of Article X of the 1987 Constitution fixes the term of
elective local officials at three years, the same provision states that the term of barangay officials shall
be determined by law;and (4) thus, it follows that the constitutional intention is to grant barangay
officials any term, except three years; otherwise, there would be no rhyme or reason for the framers
of the Constitution to except barangay officials from the three year term found in Sec. 8 (of) Article X
of the Constitution. Petitioners conclude (1) that the Commission on Elections committed grave abuse
of discretion when it promulgated Resolution Nos. 2880 and 2887 because it substituted its own will
for that of the legislative and usurped the judicial function x x x by interpreting the conflicting
provisions of Sec. 1 of RA 6679 and Sec. 43 (c) of RA 7160; and (2) that the appropriation of P400
million in the General Appropriation Act of 1997 (RA 8250) to be used in the conduct of the barangay
elections on May 12, 1997 is itself unconstitutional and a waste of public funds.
The Solicitor General agrees with petitioners, arguing that RA 6679 was not repealed by RA 7160
and thus he believes that the holding of the barangay elections (o)n the second Monday of May 1997
is without sufficient legal basis.
Respondent Commission on Elections, through Chairman Bernardo P. Pardo, defends its
assailed Resolutions and maintains that the repealing clause of RA 7160 includes all laws, whether
general or special, inconsistent with the provisions of the Local Government Code, citing this Courts
dictum in Paras vs. Comelec that the next regular election involving the barangay office is barely
[8]

seven (7) months away, the same having been scheduled in May 1997. Furthermore, RA 8250 (the
General Appropriations Act for 1997) and RA 8189 (providing for a general registration of voters) both
indicate that Congress considered that the barangay elections shall take place in May, 1997, as
provided for in RA 7160, Sec. 43 (c). Besides, petitioners cannot claim a term of more than three
[9]

years since they were elected under the aegis of the Local Government Code of 1991 which
prescribes a term of only three years. Finally, Respondent Comelec denies the charge of grave abuse
of discretion stating that the question presented x x x is a purely legal one involving no exercise of an
act without or in excess of jurisdiction or with grave abuse of discretion. [10]

As amicus curiae, former Senator Aquilino Q. Pimentel, Jr. urges the Court to deny the petitions
because (1) the Local Autonomy Code repealed both RA 6679 and 6653 not only by implication but
by design as well; (2) the legislative intent is to shorten the term of barangay officials to three years;
(3) the barangay officials should not have a term longer than that of their administrative superiors, the
city and municipal mayors; and (4) barangay officials are estopped from contesting the applicability of
the three-year term provided by the Local Government Code as they were elected under the
provisions of said Code.
From the foregoing discussions of the parties, the Court believes that the issues can be
condensed into three, as follows:
1. Which law governs the term of office of barangay officials: RA 7160 or RA 6679?
2. Is RA 7160 insofar as it shortened such term to only three years constitutional?
 3. Are petitioners estopped from claiming a term other than that provided under RA 7160?

The Courts Ruling

The petitions are devoid of merit.

Brief Historical Background of Barangay Elections

For a clear understanding of the issues, it is necessary to delve briefly into the history of
barangay elections.
As a unit of government, the barangay antedated the Spanish conquest of the Philippines. The
word barangay is derived from the Malay balangay, a boat which transported them (the Malays) to
these shores. Quoting from Juan de Plasencia, a Franciscan missionary in 1577, Historian Conrado
[11]

Benitez wrote that the barangay was ruled by a dato who exercised absolute powers of
[12]

government. While the Spaniards kept the barangay as the basic structure of government, they
stripped the dato or rajah of his powers. Instead, power was centralized nationally in the governor
[13]

general and locally in the encomiendero and later, in the alcalde mayor and
the gobernadorcillo. The dato or rajah was much later renamed cabeza de barangay, who was
elected by the local citizens possessing property. The position degenerated from a title of honor to
that of a mere government employee. Only the poor who needed a salary, no matter how low,
accepted the post. [14]

After the Americans colonized the Philippines, the barangays became known as barrios. For [15]

some time, the laws governing barrio governments were found in the Revised Administrative Code of
1916 and later in the Revised Administrative Code of 1917. Barrios were granted autonomy by the
[16]

original Barrio Charter, RA 2370, and formally recognized as quasi-municipal corporations by the[17]

Revised Barrio Charter, RA 3590. During the martial law regime, barrios were declared or renamed
barangays -- a reversion really to their pre-Spanish names -- by PD. No. 86 and PD No. 557. Their
basic organization and functions under RA 3590, which was expressly adopted as the Barangay
Charter, were retained. However, the titles of the officials were changed to barangay captain,
barangay councilman, barangay secretary and barangay treasurer.
Pursuant to Sec. 6 of Batas Pambansa Blg. 222, a Punong Barangay (Barangay Captain) and
[18]

six Kagawads ng Sangguniang Barangay (Barangay Councilmen), who shall constitute the presiding
officer and members of the Sangguniang Barangay (Barangay Council) respectively were first elected
on May 17, 1982. They had a term of six years which began on June 7, 1982.
The Local Government Code of 1983 also fixed the term of office of local elective officials at six
[19]

years. Under this Code, the chief officials of the barangay were the punong barangay, six elective
[20]

sangguniang barangay members, the kabataang barangay chairman, a barangay secretary and a
barangay treasurer. [21]

B.P. Blg. 881, the Omnibus Election Code, reiterated that barangay officials shall hold office for
[22]

six years, and stated that their election was to be held on the second Monday of May nineteen
hundred and eighty eight and on the same day every six years thereafter. [23]

This election scheduled by B.P. Blg. 881 on the second Monday of May 1988 was reset to the
second Monday of November 1988 and every five years thereafter by RA 6653. Under this law, the
[24]

term of office of the barangay officials was cut to five years and the punong barangay was to be
[25]
chosen from among themselves by seven kagawads, who in turn were to be elected at large by the
barangay electorate. [26]

But the election date set by RA 6653 on the second Monday of November 1988 was again
postponed and reset to March 28, 1989 by RA 6679, and the term of office of barangay officials was
[27]

to begin on May 1, 1989 and to end on May 31, 1994. RA 6679 further provided that there shall be
held a regular election of barangay officials on the second Monday of May 1994 and on the same day
every five (5) years thereafter. Their term shall be for five years x x x. Significantly, the manner of
[28]

election of the punong barangay was changed. Sec. 5 of said law ordained that while the seven
kagawads were to be elected by the registered voters of the barangay, (t)he candidate who obtains
the highest number of votes shall be the punong barangay and in the event of a tie, there shall be a
drawing of lots under the supervision of the Commission on Elections.
Under the Local Government Code of 1991, RA 7160, several provisions concerning barangay
[29]

officials were introduced:

(1) The term of office was reduced to three years, as follows:

SEC. 43. Term of Office. --

xxxxxxxxx

(c) The term of office of barangay officials and members of the sangguniang kabataan shall be for
three (3) years, which shall begin after the regular election of barangay officials on the second
Monday of May, 1994 (Underscoring supplied.)

(2) The composition of the Sangguniang Barangay and the manner of electing its officials were
altered, inter alia, the barangay chairman was to be elected directly by the electorate, as follows:

SEC. 387. Chief Officials and Offices. -- (a) There shall be in each barangay a punong barangay,
seven (7) sanggunian barangay members, the sanggunian kabataan chairman, a barangay secretary
and a barangay treasurer.

xxxxxxxxx

SEC. 390. Composition. -- The Sangguniang barangay, the legislative body of the barangay, shall
be composed of the punong barangay as presiding officer, and the seven (7) regular sanguniang
barangay members elected at large and the sanguniang kabataan chairman as members.

SEC. 41. Manner of Election. -- (a) The x x x punong barangay shall be elected at large x x x by the
qualified voters in the barangay. (Underscoring supplied.)

Pursuant to the foregoing mandates of the Local Autonomy Code, the qualified barangay
voters actually voted for one punong barangay and seven (7) kagawads during the barangay
elections held on May 9, 1994. In other words, the punong barangay was elected directly and
separately by the electorate, and not by the seven (7) kagawads from among themselves.
The First Issue: Clear Legislative Intent and Design to Limit Term to Three Years
In light of the foregoing brief historical background, the intent and design of the legislature to limit
the term of barangay officials to only three (3) years as provided under the Local Government Code
emerges as bright as the sunlight. The cardinal rule in the interpretation of all laws is to ascertain and
give effect to the intent of the law. And three years is the obvious intent.
[30]

First. RA 7160, the Local Government Code, was enacted later than RA 6679. It is basic that in
case of an irreconciliable conflict between two laws of different vintages, the later enactment prevails.
Legis posteriores priores contrarias abrogant. The rationale is simple: a later law repeals an earlier
[31]

one because it is the later legislative will. It is to be presumed that the lawmakers knew the older law
and intended to change it. In enacting the older law, the legislators could not have known the newer
one and hence could not have intended to change what they did not know. Under the Civil Code, laws
are repealed only by subsequent ones -- and not the other way around.
[32]

Under Sec. 43-c of RA 7160, the term of office of barangay officials was fixed at three (3) years
which shall begin after the regular election of barangay officials on the second Monday of May
1994. This provision is clearly inconsistent with and repugnant to Sec. 1 of RA 6679 which states that
such term shall be for five years. Note that both laws refer to the same officials who were elected on
the second Monday of May 1994.
Second. RA 6679 requires the barangay voters to elect seven kagawads and the candidate
obtaining the highest number of votes shall automatically be the punong barangay. RA 6653
empowers the seven elected barangay kagawads to select the punong barangay from among
themselves. On the other hand, the Local Autonomy Code mandates a direct vote on the barangay
chairman by the entire barangay electorate, separately from the seven kagawads. Hence, under the
Code, voters elect eight barangay officials, namely, the punong barangay plus the seven
kagawads. Under both RA 6679 and 6653, they vote for only seven kagawads, and not for the
barangay chairman.
Third. During the barangay elections held on May 9, 1994 (second Monday), the voters actually
and directly elected one punong barangay and seven kagawads. If we agree with the thesis of
petitioners, it follows that all the punong barangays were elected illegally and thus, Petitioner Alex
David cannot claim to be a validly elected barangay chairman, much less president of the national
league of barangays which he purports to represent in this petition. It then necessarily follows also
that he is not the real party-in-interest and on that ground, his petition should be summarily
dismissed.
Fourth. In enacting the general appropriations act of 1997, Congress appropriated the amount
[33]

of P400 million to cover expenses for the holding of barangay elections this year.Likewise, under Sec.
7 of RA 8189, Congress ordained that a general registration of voters shall be held immediately after
the barangay elections in 1997. These are clear and express contemporaneous statements of
Congress that barangay officials shall be elected this May, in accordance with Sec. 43-c of RA 7160.
Fifth. In Paras vs. Comelec, this Court said that the next regular election involving the barangay
[34]

office concerned is barely seven (7) months away, the same having been scheduled in May,
1997. This judicial decision, per Article 8 of the Civil Code, is now a part of the legal system of the
Philippines.
Sixth. Petitioners pompously claim that RA 6679, being a special law, should prevail over RA
7160, an alleged general law pursuant to the doctrine of generalia specialibus non
derogant. Petitioners are wrong. RA 7160 is a codified set of laws that specifically applies to local
government units. It specifically and definitively provides in its Sec. 43-c that the term of office of
barangay officials x x x shall be for three years. It is a special provision that applies only to the term of
barangay officials who were elected on the second Monday of May 1994.With such particularity, the
provision cannot be deemed a general law. Petitioner may be correct in alleging that RA 6679 is a
special law, but they are incorrect in stating (without however giving the reasons therefor) that RA
7160 is necessarily a general law. It is a special law insofar as it governs the term of office of
[35]

barangay officials. In its repealing clause, RA 7160 states that all general and special laws x x x
[36]
which are inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly. There being a clear repugnance and incompatibility between the two specific provisions,
they cannot stand together. The later law, RA 7160, should thus prevail in accordance with its
repealing clause. When a subsequent law encompasses entirely the subject matter of the former
enactments, the latter is deemed repealed. [37]

The Second Issue: Three-Year Term Not Repugnant to Constitution

Sec. 8, Article X of the Constitution states:

SEC. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years, and no such official shall serve for more than three
consecutive terms.Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.

Petitioner Liga ng mga Barangay Quezon City Chapter posits that by excepting barangay officials
whose term shall be determined by law from the general provision fixing the term of elective local
officials at three years, the Constitution thereby impliedly prohibits Congress from legislating a three-
year term for such officers. We find this theory rather novel but nonetheless logically and legally
flawed.
Undoubtedly, the Constitution did not expressly prohibit Congress from fixing any term of office
for barangay officials. It merely left the determination of such term to the lawmaking body, without any
specific limitation or prohibition, thereby leaving to the lawmakers full discretion to fix such term in
accordance with the exigencies of public service. It must be remembered that every law has in its
favor the presumption of constitutionality. For a law to be nullified, it must be shown that there is a
[38]

clear and unequivocal (not just implied) breach of the Constitution. To strike down a law as
[39]

unconstitutional, there must be a clear and unequivocal showing that what the fundamental law
prohibits, the statute permits. The petitioners have miserably failed to discharge this burden and to
[40]

show clearly the unconstitutionality they aver.

There is absolutely no doubt in our mind that Sec. 43-c of RA 7160 is constitutional. Sec. 8,
Article X of the Constitution -- limiting the term of all elective local officials to three years, except that
of barangay officials which shall be determined by law -- was an amendment proposed by
Constitutional Commissioner (now Supreme Court Justice) Hilario G. Davide, Jr.According to Fr.
Joaquin G. Bernas, S.J., the amendment was readily accepted without much discussion and formally
approved. Indeed, a search into the Record of the Constitutional Commission yielded only a few
pages of actual deliberations, the portions pertinent to the Constitutional Commissions intent being
[41]

the following:
MR. NOLLEDO. One clarificatory question, Madam President. What will be the term of the office of
barangay officials as provided for?
MR. DAVIDE. As may be determined by law.
MR. NOLLEDO. As provided for in the Local Government Code?
MR. DAVIDE. Yes.
xxxxxxxxx
THE PRESIDENT. Is there any other comment? Is there any objection to this proposed new section as
submitted by Commissioner Davide and accepted by the Committee?
 MR. RODRIGO. Madam President, does this prohibition to serve for more than three consecutive terms
apply to barangay officials?
MR. DAVIDE. Madam President, the voting that we had on the terms of office did not include the barangay
officials because it was then the stand of the Chairman of the Committee on Local Governments that
the term of barangay officials must be determined by law. So it is now for the law to determine
whether the restriction on the number of reelections will be included in the Local Government Code.
MR. RODRIGO. So that is up to Congress to decide.
MR. DAVIDE. Yes.
MR. RODRIGO. I just wanted that clear in the record.
Although the discussions in the Constitutional Commission were very brief, they nonetheless
provide the exact answer to the main issue. To the question at issue here on how long the term of
barangay officials is, the answer of the Commission was simple, clear and quick: As may be
determined by law; more precisely, (a)s provided for in the Local Autonomy Code. And the Local
Autonomy Code, in its Sec. 43-c, limits their term to three years.

The Third Issue: Petitioners Estopped From Challenging Their Three-Year Terms

We have already shown that constitutionally, statutorily, logically, historically and

commonsensically, the petitions are completely devoid of merit. And we could have ended our
Decision right here. But there is one last point why petitioners have no moral ascendancy for their
dubious claim to a longer term of office: the equities of their own petition militate against them. As
pointed out by Amicus Curiae Pimentel, petitioners are barred by estoppel from pursuing their
[42]

petitions.
Respondent Commission on Elections submitted as Annex A of its memorandum, a machine [43]

copy of the certificate of candidacy of Petitioner Alex L. David in the May 9, 1994 barangay elections,
the authenticity of which was not denied by said petitioner. In said certificate of candidacy, he
expressly stated under oath that he was announcing his candidacy for the office of punong barangay
for Barangay 77, Zone 7 of Kalookan City and that he was eligible for said office. The Comelec also
submitted as Annex B to its said memorandum, a certified statement of the votes obtained by the
[44]

candidates in said elections, thus:

BARANGAY 77
CERTIFIED LIST OF CANDIDATES
VOTES OBTAINED

May 9, 1994 BARANGAY ELECTIONS

PUNONG BARANGAY VOTES OBTAINED

1. DAVID, ALEX L. 112

KAGAWAD

1. Magalona, Ruben 150

2. Quinto, Nelson L. 130
3. Ramon, Dolores Z. 120
4. Dela Pena, Roberto T. 115
 5. Castillo, Luciana 114
6. Lorico, Amy A. 107
7. Valencia, Arnold 102
8. Ang, Jose 97
9. Dequilla, Teresita D. 58
10.Primavera, Marcelina 52

If, as claimed by petitioners, the applicable law is RA 6679, then (1) Petitioner David should not
have run and could not have been elected chairman of his barangay because under RA 6679, there
was to be no direct election for the punong barangay; the kagawad candidate who obtained the
highest number of votes was to be automatically elected barangay chairman; (2) thus, applying said
law, the punong barangay should have been Ruben Magalona, who obtained the highest number of
votes among the kagawads -- 150, which was much more than Davids 112; (3) the electorate should
have elected only seven kagawads and not one punong barangay plus seven kagawads.
In other words, following petitioners own theory, the election of Petitioner David as well as all the
barangay chairmen of the two Liga petitioners was illegal.
The sum total of these absurdities in petitioners theory is that barangay officials are estopped
from asking for any term other than that which they ran for and were elected to, under the law
governing their very claim to such offices: namely, RA 7160, the Local Government Code. Petitioners
belated claim of ignorance as to what law governed their election to office in 1994 is unacceptable
because under Art. 3 of the Civil Code, (i)gnorance of the law excuses no one from compliance
therewith.

Epilogue

It is obvious that these two petitions must fail. The Constitution and the laws do not support
them. Extant jurisprudence militates against them. Reason and common sense reject them.Equity
and morality abhor them. They are subtle but nonetheless self-serving propositions to lengthen
governance without a mandate from the governed. In a democracy, elected leaders can legally and
morally justify their reign only by obtaining the voluntary consent of the electorate. In this case
however, petitioners propose to extend their terms not by seeking the peoplesvote but by faulty legal
argumentation. This Court cannot and will not grant its imprimatur to such untenable proposition. If
they want to continue serving, they must get a new mandate in the elections scheduled on May 12,
1997.
WHEREFORE, the petitions are DENIED for being completely devoid of merit.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan,
Mendoza, Francisco, and Torres, Jr., JJ., concur.
Vitug, J., concurs except that on the matter of estoppel he reserved his vote.
Hermosisima, Jr., J., on leave.
G.R. No. L-34964 January 31, 1973

CHINA BANKING CORPORATION and TAN KIM LIONG, petitioners-appellants,

vs.
HON. WENCESLAO ORTEGA, as Presiding Judge of the Court of First Instance of Manila, Branch VIII, and
VICENTE G. ACABAN, respondents-appellees.

Sy Santos, Del Rosario and Associates for petitioners-appellants.

Tagalo, Gozar and Associates for respondents-appellees.

MAKALINTAL, J.:

The only issue in this petition for certiorari to review the orders dated March 4, 1972 and March 27, 1972,
respectively, of the Court of First Instance of Manila in its Civil Case No. 75138, is whether or not a banking
institution may validly refuse to comply with a court process garnishing the bank deposit of a judgment debtor, by
invoking the provisions of Republic Act No. 1405. *

On December 17, 1968 Vicente Acaban filed a complaint in the court a quo against Bautista Logging Co., Inc., B &
B Forest Development Corporation and Marino Bautista for the collection of a sum of money. Upon motion of the
plaintiff the trial court declared the defendants in default for failure to answer within the reglementary period, and
authorized the Branch Clerk of Court and/or Deputy Clerk to receive the plaintiff's evidence. On January 20, 1970
judgment by default was rendered against the defendants.

To satisfy the judgment, the plaintiff sought the garnishment of the bank deposit of the defendant B & B Forest
Development Corporation with the China Banking Corporation. Accordingly, a notice of garnishment was issued by
the Deputy Sheriff of the trial court and served on said bank through its cashier, Tan Kim Liong. In reply, the bank'
cashier invited the attention of the Deputy Sheriff to the provisions of Republic Act No. 1405 which, it was alleged,
prohibit the disclosure of any information relative to bank deposits. Thereupon the plaintiff filed a motion to cite Tan
Kim Liong for contempt of court.

In an order dated March 4, 1972 the trial court denied the plaintiff's motion. However, Tan Kim Liong was ordered "to
inform the Court within five days from receipt of this order whether or not there is a deposit in the China Banking
Corporation of defendant B & B Forest Development Corporation, and if there is any deposit, to hold the same intact
and not allow any withdrawal until further order from this Court." Tan Kim Liong moved to reconsider but was turned
down by order of March 27, 1972. In the same order he was directed "to comply with the order of this Court dated
March 4, 1972 within ten (10) days from the receipt of copy of this order, otherwise his arrest and confinement will
be ordered by the Court." Resisting the two orders, the China Banking Corporation and Tan Kim Liong instituted the
instant petition.

The pertinent provisions of Republic Act No. 1405 relied upon by the petitioners reads:

Sec. 2. All deposits of whatever nature with banks or banking institutions in the Philippines including
investments in bonds issued by the Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of absolutely confidential nature and may not be
examined, inquired or looked into by any person, government official, bureau or office, except upon
written permission of the depositor, or in cases of impeachment, or upon order of a competent court
 in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or
invested is the subject matter of the litigation.

Sec 3. It shall be unlawful for any official or employee of a banking institution to disclose to any
person other than those mentioned in Section two hereof any information concerning said deposits.

Sec. 5. Any violation of this law will subject offender upon conviction, to an imprisonment of not more
than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the
court.

The petitioners argue that the disclosure of the information required by the court does not fall within any of the four
(4) exceptions enumerated in Section 2, and that if the questioned orders are complied with Tan Kim Liong may be
criminally liable under Section 5 and the bank exposed to a possible damage suit by B & B Forest Development
Corporation. Specifically referring to this case, the position of the petitioners is that the bank deposit of judgment
debtor B & B Forest Development Corporation cannot be subject to garnishment to satisfy a final judgment against it
in view of the aforequoted provisions of law.

We do not view the situation in that light. The lower court did not order an examination of or inquiry into the deposit
of B & B Forest Development Corporation, as contemplated in the law. It merely required Tan Kim Liong to inform
the court whether or not the defendant B & B Forest Development Corporation had a deposit in the China Banking
Corporation only for purposes of the garnishment issued by it, so that the bank would hold the same intact and not
allow any withdrawal until further order. It will be noted from the discussion of the conference committee report on
Senate Bill No. 351 and House Bill No. 3977, which later became Republic Act 1405, that it was not the intention of
the lawmakers to place bank deposits beyond the reach of execution to satisfy a final judgment. Thus:

Mr. MARCOS. Now, for purposes of the record, I should like the Chairman of the Committee on
Ways and Means to clarify this further. Suppose an individual has a tax case. He is being held liable
by the Bureau of Internal Revenue for, say, P1,000.00 worth of tax liability, and because of this the
deposit of this individual is attached by the Bureau of Internal Revenue.

Mr. RAMOS. The attachment will only apply after the court has pronounced sentence declaring the
liability of such person. But where the primary aim is to determine whether he has a bank deposit in
order to bring about a proper assessment by the Bureau of Internal Revenue, such inquiry is not
authorized by this proposed law.

Mr. MARCOS. But under our rules of procedure and under the Civil Code, the attachment or
garnishment of money deposited is allowed. Let us assume, for instance, that there is a preliminary
attachment which is for garnishment or for holding liable all moneys deposited belonging to a certain
individual, but such attachment or garnishment will bring out into the open the value of such deposit.
Is that prohibited by this amendment or by this law?

Mr. RAMOS. It is only prohibited to the extent that the inquiry is limited, or rather, the inquiry is made
only for the purpose of satisfying a tax liability already declared for the protection of the right in favor
of the government; but when the object is merely to inquire whether he has a deposit or not for
purposes of taxation, then this is fully covered by the law.

Mr. MARCOS. And it protects the depositor, does it not?

Mr. RAMOS. Yes, it protects the depositor.

Mr. MARCOS. The law prohibits a mere investigation into the existence and the amount of the
deposit.

Mr. RAMOS. Into the very nature of such deposit.

Mr. MARCOS. So I come to my original question. Therefore, preliminary garnishment or attachment

of the deposit is not allowed?
 Mr. RAMOS. No, without judicial authorization.

Mr. MARCOS. I am glad that is clarified. So that the established rule of procedure as well as the
substantive law on the matter is amended?

Mr. RAMOS. Yes. That is the effect.

Mr. MARCOS. I see. Suppose there has been a decision, definitely establishing the liability of an
individual for taxation purposes and this judgment is sought to be executed ... in the execution of that
judgment, does this bill, or this proposed law, if approved, allow the investigation or scrutiny of the
bank deposit in order to execute the judgment?

Mr. RAMOS. To satisfy a judgment which has become executory.

Mr. MARCOS. Yes, but, as I said before, suppose the tax liability is P1,000,000 and the deposit is
half a million, will this bill allow scrutiny into the deposit in order that the judgment may be executed?

Mr. RAMOS. Merely to determine the amount of such money to satisfy that obligation to the
Government, but not to determine whether a deposit has been made in evasion of taxes.

xxx xxx xxx

Mr. MACAPAGAL. But let us suppose that in an ordinary civil action for the recovery of a sum of
money the plaintiff wishes to attach the properties of the defendant to insure the satisfaction of the
judgment. Once the judgment is rendered, does the gentleman mean that the plaintiff cannot attach
the bank deposit of the defendant?

Mr. RAMOS. That was the question raised by the gentleman from Pangasinan to which I replied that
outside the very purpose of this law it could be reached by attachment.

Mr. MACAPAGAL. Therefore, in such ordinary civil cases it can be attached?

Mr. RAMOS. That is so.

(Vol. II, Congressional Record, House of Representatives, No. 12, pp. 3839-3840, July 27, 1955).

It is sufficiently clear from the foregoing discussion of the conference committee report of the two houses of
Congress that the prohibition against examination of or inquiry into a bank deposit under Republic Act 1405 does
not preclude its being garnished to insure satisfaction of a judgment. Indeed there is no real inquiry in such a case,
and if the existence of the deposit is disclosed the disclosure is purely incidental to the execution process. It is hard
to conceive that it was ever within the intention of Congress to enable debtors to evade payment of their just debts,
even if ordered by the Court, through the expedient of converting their assets into cash and depositing the same in a
bank.

WHEREFORE, the orders of the lower court dated March 4 and 27, 1972, respectively, are hereby affirmed, with
costs against the petitioners-appellants.

Zaldivar, Castro, Fernando, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Concepcion, C.J. and Teehankee, J., took no part.

G.R. No. L-17931 February 28, 1963

CASCO PHILIPPINE CHEMICAL CO., INC., petitioner,

vs.
HON. PEDRO GIMENEZ, in his capacity as Auditor General of the Philippines,
and HON. ISMAEL MATHAY, in his capacity as Auditor of the Central Bank, respondents.

Jalandoni & Jamir for petitioner.

Officer of the Solicitor General for respondents.

CONCEPCION, J.:

This is a petition for review of a decision of the Auditor General denying a claim for refund of petitioner Casco
Philippine Chemical Co., Inc.

The main facts are not disputed. Pursuant to the provisions of Republic Act No. 2609, otherwise known as the
Foreign Exchange Margin Fee Law, the Central Bank of the Philippines issued on July 1, 1959, its Circular No. 95.
fixing a uniform margin fee of 25% on foreign exchange transactions. To supplement the circular, the Bank later
promulgated a memorandum establishing the procedure for applications for exemption from the payment of said
fee, as provided in said Republic Act No. 2609. Several times in November and December 1959, petitioner Casco
Philippine Chemical Co., Inc. — which is engaged in the manufacture of synthetic resin glues, used in bonding
lumber and veneer by plywood and hardwood producers — bought foreign exchange for the importation of urea and
formaldehyde — which are the main raw materials in the production of said glues — and paid therefor the
aforementioned margin fee aggregating P33,765.42. In May, 1960, petitioner made another purchase of foreign
exchange and paid the sum of P6,345.72 as margin fee therefor.

Prior thereto, petitioner had sought the refund of the first sum of P33,765.42, relying upon Resolution No. 1529 of
the Monetary Board of said Bank, dated November 3, 1959, declaring that the separate importation of urea and
formaldehyde is exempt from said fee. Soon after the last importation of these products, petitioner made a similar
request for refund of the sum of P6,345.72 paid as margin fee therefor. Although the Central Bank issued the
corresponding margin fee vouchers for the refund of said amounts, the Auditor of the Bank refused to pass in audit
and approve said vouchers, upon the ground that the exemption granted by the Monetary Board for petitioner's
separate importations of urea and formaldehyde is not in accord with the provisions of section 2, paragraph XVIII of
Republic Act No. 2609. On appeal taken by petitioner, the Auditor General subsequently affirmed said action of the
Auditor of the Bank. Hence, this petition for review.

The only question for determination in this case is whether or not "urea" and "formaldehyde" are exempt by law from
the payment of the aforesaid margin fee. The pertinent portion of Section 2 of Republic Act No. 2609 reads:

The margin established by the Monetary Board pursuant to the provision of section one hereof shall not be
imposed upon the sale of foreign exchange for the importation of the following:.

xxx xxx xxx

XVIII. Urea formaldehyde for the manufacture of plywood and hardboard when imported by and for the
exclusive use of end-users.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by
this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not
covered by this stipulation of facts.
1äwphï1.ñët
Petitioner maintains that the term "urea formaldehyde" appearing in this provision should be construed as
"ureaand formaldehyde" (emphasis supplied) and that respondents herein, the Auditor General and the Auditor of
the Central Bank, have erred in holding otherwise. In this connection, it should be noted that, whereas "urea" and
"formaldehyde" are the principal raw materials in the manufacture of synthetic resin glues, the National Institute of
Science and Technology has expressed, through its Commissioner, the view that:

Urea formaldehyde is not a chemical solution. It is the synthetic resin formed as a condensation product
from definite proportions of urea and formaldehyde under certain conditions relating to temperature, acidity,
and time of reaction. This produce when applied in water solution and extended with inexpensive fillers
constitutes a fairly low cost adhesive for use in the manufacture of plywood.

Hence, "urea formaldehyde" is clearly a finished product, which is patently distinct and different from urea" and
"formaldehyde", as separate articles used in the manufacture of the synthetic resin known as "urea formaldehyde".
Petitioner contends, however, that the bill approved in Congress contained the copulative conjunction "and" between
the terms "urea" and "formaldehyde", and that the members of Congress intended to exempt "urea" and
"formaldehyde" separately as essential elements in the manufacture of the synthetic resin glue called "urea"
formaldehyde", not the latter as a finished product, citing in support of this view the statements made on the floor of
the Senate, during the consideration of the bill before said House, by members thereof. But, said individual
statements do not necessarily reflect the view of the Senate. Much less do they indicate the intent of the House of
Representatives (see Song Kiat Chocolate Factory vs. Central Bank, 54 Off. Gaz., 615; Mayon Motors Inc. vs.
Acting Commissioner of Internal Revenue, L-15000 [March 29, 1961]; Manila Jockey Club, Inc. vs. Games &
Amusement Board, L-12727 [February 29, 1960]). Furthermore, it is well settled that the enrolled bill — which uses
the term "urea formaldehyde" instead of "urea and formaldehyde" — is conclusive upon the courts as regards the
tenor of the measure passed by Congress and approved by the President (Primicias vs. Paredes, 61 Phil. 118, 120;
Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comm. on Elections, L-18684, September 14, 1961). If there has
been any mistake in the printing ofthe bill before it was certified by the officers of Congress and approved by the
Executive — on which we cannot speculate, without jeopardizing the principle of separation of powers and
undermining one of the cornerstones of our democratic system — the remedy is by amendment or curative
legislation, not by judicial decree.

WHEREFORE, the decision appealed from is hereby affirmed, with costs against the petitioner. It is so ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal,
JJ., concur.
G.R. No. L-12727 February 29, 1960

MANILA JOCKEY CLUB, INC., petitioner-appellant,

vs.
GAMES AND AMUSEMENTS BOARD, ET AL., respondents-appellees.
PHILIPPINE RACING CLUB, INC., petitioner-intervenor-appellant.

Lichauco, Picazo and Agcaoili for appellant.

First Assistant Government Corporate Counsel Simeon M. Gopengco and Attorney Pedro L. Bautista for appellee
PCSO.
Assistant Solicitor General Jose P. Alejandro and Solicitor Pacifico P. de Castro for the other appellees.
Cesar S. de Guzman for appellant.

BARRERA, J.:

This is a petition for declaratory relief filed by petitioner Manila Jockey Club, Inc., in the Court of First Instance
Manila (Civil Case No. 31274), in which the Philippine Racing Club, Inc., intervened as party in interest with leave of
court, praying that judgment be rendered against respondents Games and Amusements Board (GAB), Philippine
Charity Sweepstakes Office (PCSO), and Executive Secretary Fortunato de Leon:

(a) Interpreting Republic Acts Nos. 309 and 1502 in such a manner that the 30 Sundays unreserved for
charitable institutions and therefore belonging to the private racing clubs under Section 4 of Republic Act No.
309 continue to pertain to said private entities, and that the 6 additional sweepstakes races authorized under
Republic Act No. 1502 should be held on 6 of the 12 Saturdays not reserved for any private entity or
particular charitable institution under Section 4 of Republic Act No. 309, or on any other day of the week
besides Sunday, Saturday and legal holiday;

(b) Holding that respondent PCSO does not have the right or power to appropriate or use the race tracks
and equipment of petitioner without its consent, nor can respondents compel petitioner to so allow such use
of its race tracks and equipment under pain of having its license revoked.

Respondents duly filed their respective answers to said petition and the case was heard. After hearing, the court, on
July 5, 1957, rendered a decision which, in part, reads:

The court does not deem it necessary to rule on the deprivation of property of the petitioner and the
intervenor without due process of law, as feared by them, because as they have stated, the Philippine
Charity Sweepstakes Office is using their premises and equipment under separate contracts of lease
voluntarily and willingly entered into by the parties upon payment of a corresponding rental. There is
therefore no deprivation of property without due process of law.

Wherefore, the court is of the opinion and so holds that once a month on a Sunday not reserved for the Anti-
Tuberculosis Society, the White Cross and other charitable institutions by Section 4 of Republic Act No. 309,
the Philippine Charity Sweepstakes Office is authorized to hold one regular sweepstakes draw and races,
pursuant to Section 9 of Republic Act No. 1502, thus reducing the number of Sundays which may be alloted
to private entities by the Games and Amusements Board. . . .

From this judgment, petitioner and intervenor interposed the present appeal.

The issue is the proper placement of the six (6) additional racing days given to the Philippine Charity Sweepstakes
Office, in virtue of Republic Act No. 1502, approved on June 16, 1956.
The authorized racing days specifically designated and distributed in Section 4 of Republic Act No. 309, the basic
law on horse racing in the Philippines, as later amended by Republic Act No. 983, are as follows:

A. Sundays:
(1) For the Philippine Anti-Tuberculosis
Society .................. 12 Sundays
(2) For the Philippine Charity Sweepstakes Office (PCSO)
. 6 Sundays
(3) For the White Cross, Inc. ............................................. 4 Sundays
(4) For the Grand Derby Race of the Philippine Anti-
Tuberculosis Society ........................................................ 1 Sunday
Total ................................................................ 23 Sundays
(5) For private individuals and entities duly licensed by
the GAB, other Sundays not reserved under this Act, as
may be determined by the
GAB ........................................... 29 Sundays
or 30 for Leap years
Total for the year .................... 52 Sundays
or 53 for leap years.
B. Saturdays:
(1) For the Philippine Anti-Tuberculosis Society ..... 12 Saturdays
(2) For the White Cross, Inc. ....................................... 4 Saturdays
(3) For private Individuals and entities duly licensed by
GAB and as may be determined by
it .................................. 24 Saturdays
(4) For races authorized by the President for charitable,
relief, or civic purposes other than the particular
charitable institutions named above, all other Saturdays
not reserved for the latter .................... 12 Saturdays
Total ................................................................ 52 Saturdays

C. Legal Holidays: All, except Thursday and Friday of the Holy Week, July 4th and December 30th, have
been reserved for private individuals and entities duly licensed by the GAB.

As stated, Republic Act No. 1502 increased the sweepstakes draw and races of the PCSO to twelve, but without
specifying the days on which they are to be run. To accommodate these additional races, the GAB resolved to
reduce the number of Sundays assigned to private individuals and entities by six. Appellants protested, contending
that the said increased should be taken from the 12 Saturdays reserved to the President, for charitable, relief, or
civic purposes, or should be assigned to any other day of the week besides Sunday, Saturday, and legal holiday.

Appellants' contention cannot be sustained. Section 4 Republic Act No. 309, as amended by Republic Act No. 983,
by express terms, specifically reserved 23 Sundays and 16 Saturdays for the Philippine Anti-Tuberculosis Society,
the White Cross, Inc. and the PCSO, and 12 Saturdays to the President for other charitable, relief, or civic purposes.
These days can not be disposed of by the GAB without authority of law. As to the remaining racing days, the law
provides:

SEC. 4. Racing days.—Private individuals and entities duly licensed by the Commission on Races (now
GAB) may hold horse races on Sundays not reserved under this Act, on twenty-four Saturdays as may be
determined by the said Commission (GAB), and on legal holidays, except Thursday and Friday of Holy
Week, July fourth, commonly known as Independence Day, and December thirtieth, commonly known as
Rizal Day.
It is clear from the above-quoted provision that appellants have no vested right to the unreserved Sundays, or even
to the 24 Saturdays (except, perhaps, on the holidays), because their holding of races on these days is merely
permissive, subject to the licensing and determination by the GAB. When, therefore, Republic Act No. 1502 was
enacted increasing by six (6) the sweepstakes draw and races, but without specifying the days for holding them, the
GAB had no alternative except to make room for the additional races, as it did, form among the only available racing
days unreserved by any law — the Sundays on which the private individuals and entities have been permitted to
hold their races, subject to licensing and determination by the GAB.

It is suggested that the GAB should have chosen any week days or Saturday afternoons. In the first place, week
days are out of the question. The law does not authorize the holding of horse races with betting on week days (See
Article 198 of the Revised Penal Code). Secondly, sweepstakes races have always been held on Sundays. Besides,
it is not possible to hold them on Saturday afternoons as, it is claimed, a whole day is necessary for the mixing of
the sweepstakes balls, the drawing of winning sweepstakes numbers, and the running of the sweepstakes races. Be
that as it may, since the law has given certain amount of discretion to the GAB in determining and allocating racing
days not specifically reserved, and since the court does not find that a grave abuse of this discretion has been
committed, there seems to be no reason, legal or otherwise, to set aside the resolution of the GAB.

Furthermore, appellants contend that even granting that the six (6) additional sweepstakes races should be run on
Sundays, yet if they are held on a club race day, the GAB should only insert them in the club races and not given the
whole day to the PCSO, to the exclusion of appellants. In support of this contention, the following quotation from the
debate in the House of Representatives before voting on House Bill No. 5732, which became Republic Act No.
1502, is cited:

Mr. ABELEDA. If there are no more amendments, I move that we vote on the measure.

Mr. MARCOS. Mr. Speaker, before we proceed to vote on this bill, I want to make it of record that it is the
clear intention of the House to increase by two the ten regular and special Sweepstakes races making it all
in all, twelve, and that in cases where a sweepstakes race falls in a club race days the Sweepstakes races
should be inserted in the club race.

Mr. ABELEDA. The gentleman from Ilocos Norte is correct. . . . (t.s.n., Proceedings in House of
Representatives, Congress, May 17, 1956; emphasis supplied.)

Appellants cite in their briefs a number of authorities sustaining the view that in the interpretation of statutes
susceptible of widely differing constructions, legislative debates and explanatory statements by members of the
legislature may be resorted to, to throw light on the meaning of the words used in the statutes. Upon the other hand,
the appellees, likewise, quote in their briefs other authorities to the effect that statements made by the individual
members of the legislature as to the meaning of provisions in the bill subsequently enacted into law, made during
the general debate on the bill on the floor of each legislative house, following its presentation by a standing
committee, are generally held to be in admissable as an aid in construing the statute. Legislative debates are
expressive of the views and motives of individual members and are not safe guides and, hence, may not be
resorted to in ascertaining the meaning and purpose of the lawmaking body. It is impossible to determine with
certainty what construction was put upon an act by the members of the legislative body that passed the bill, by
resorting to the speeches of the members thereof. Those who did not speak, may not have agreed with those who
did; and those who spoke, might differ from each other. 1

In view of these conflicting authorities, no appreciable reliance can safely be placed on any of them. It is to be noted
in the specific case before us, that while Congressmen Marcos and Abeleda were, admittedly, of the view that the
additional sweepstakes races may be inserted in the club races, still there is nothing in Republic Act No. 1502, as it
was finally enacted, which would indicate that such an understanding on the part of these two members of the
Lower House of Congress were received the sanction or conformity of their colleagues, for the law is absolutely
devoid of any such indication. This is, therefore, not a case where a doubtful wording is sought to be interpreted;
rather, if we adopt appellants' theory, we would be supplying something that does not appear in the statute. It is
pertinent to observe here that, as pointed out by one of appellants' own cited authorities, 2 in the interpretation of a
legal document, especially a statute, unlike in the interpretation of an ordinary written document, it is not enough to
obtain information to the intention or meaning of the author or authors, but also to see whether the intention or
meaning has been expressed in such a way as to give it legal effect and validity. In short, the purpose of the inquiry,
is not only to know what the author meant by the language he used, but also to see that the language used
sufficiently expresses that meaning. The legal act, so to speak, is made up of two elements — an internal and an
external one; it originates in intention and is perfected by expression. Failure of the latter may defeat the former. The
following, taken from 59 Corpus Juris 1017, is in the line with this theory:

The intention of the legislature to which effect must be given is that expressed in the statute and the courts
will not inquire into the motives which influence the legislature, or individual members, in voting for its
passage; nor indeed as to the intention of the draftsman, or the legislature, so far as it has been expressed
in the act. So, in ascertaining the meaning of a statute the court will not be governed or influenced by the
views or opinions of any or all members of the legislature or its legislative committees or any other persons.

Upon the other hand, at the time of the enactment of Republic Act No. 1502 in June, 1956, the long, continuous, and
uniform practice was that all sweepstakes draws and races were held on Sundays and during the whole day. With
this background, when Congress chose not to specify in express terms how the additional sweepstakes draws and
races would be held, it is safe to conclude that it did not intend to disturb the then prevailing situation and practice.

"On the principle of contemporaneous exposition, common usage and practice under the statute, or a course of
conduct indicating a particular undertaking of it, will frequently be of great value in determining its real meaning,
especially where the usage has been acquired in by all parties concerned and has extended over a long period of
time; . . . (59 C. J. 1023).

Likewise, the language of Republic Act No. 1502 in authorizing the increase, clearly speaks of regular sweepstakes
draws and races. If the intention of Congress were to authorize additional sweepstakes draws only which could,
admittedly, be inserted in the club races, the law would not have included regular races; and since regular
sweepstakes races were specifically authorized, and it would be confusing, inconvenient, if not impossible to mix
these sweepstakes races with the regular club races all on the same day (and it has never been done before), the
conclusion seems inevitable that the additional sweepstakes draws and races were intended to be held on a whole
day, separate and apart from the club races.

Appellants' contention that to compel them to permit the PCSO to use their premises and equipment against their
will would constitute deprivation of property without due process of law, deserves no serious consideration. As the
lower court has found, every time the PCSO uses appellants' premises and equipment, they are paid rentals in
accordance with the terms of separate contracts of lease existing between them and the PCSO.

The decision appealed from, being in consonance with the above findings and considerations of this Court, the
same is hereby affirmed, with costs against the appellants. So ordered.

Paras, C. J., Bengzon, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Gutierrez David, JJ., concur.
G.R. Nos. 48886-88 July 21, 1993

COMMISSIONER OF CUSTOMS, petitioner,

vs.
COURT OF TAX APPEALS and LITONJUA SHIPPING COMPANY represented by Granexport Corporation as
sub-agent, respondent.

The Solicitor General for petitioner.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles Law Offices for private respondent.

MELO, J.:

This refers to a petition for review of the decision dated July 28, 1978 of the Court of Tax Appeals in C. T. A. Cases
No. 2785, 2831 and 2832 which was promulgated prior to the issuance on February 27, 1991, of Circular No.
1-91 to the effect that appeals from a final order or decision of the Court of Tax Appeals shall be to the Court of
Appeals.

The undisputed facts of the case as established by the evidence and as found by respondent Court of Tax Appeals,
are as follows:

The berthing facilities of Iligan Bay Express Corporation at Kiwalan were constructed and improved and are
operated and maintained solely by and at the expense of Iligan Express Corporation, a private corporation.

The MS "Chozan Maru", MS "Samuel S", MS "Ero", MS "Messinia", MS "Pavel Rybin", MS "Caledonia", and MS
"Leonidas" are vessels engaged in foreign trade and represented in the Philippines by private respondent Litonjua
Shipping Company Granexport Corporation as its sub-agent.

On various date, berthing facilities of the Iligan Bay Express Corporation at Kiwalan, Iligan City were used by the
above vessels and were assessed berthing fees by the Collector of Customs which were paid by private respondent
under protest, to wit:

a) June 27, 1973, MS "Chozan Maru" — P2,551.00 paid on April 17, 1973;

b) April 27, 1973, MS "Samuel S" — P8,000.00 paid on May 9, 1973;

c) May 27, 1973, MS "Ero" — P5,000.00 paid on June 4, 1973;

d) June 2, 1973 MS "Messinia" — P5,000.00 paid on June 11, 1973;

e) March 22-26, 1975, MS "Pavel Rybin" — P4,000.00 paid on April 3, 1975;

f) April 26-May 3, 1975 MS "Caledonia" — P7,000.00 on May 7, 1975; and

g) May 25-June 3, 1975, MS "Caledonia" — P9,000.00 paid on June 7, 1975.

Private respondent filed cases before the Bureau of Customs for refund of the berthing fees paid under protest. The
Collector of Customs of the City of Iligan denied the protest, prompting private respondent to appeal to the
Commissioner of Customs who, however, affirmed the decision of the Collector of Customs.
Private respondent then resorted to the Court of Tax Appeals. Consolidating the protests, the tax court, thereafter
rendered a decision on July 28, 1978, the dispositive portion of which reads as follows:

WHEREFORE, the decisions appealed from are hereby reversed and respondent Commissioner of
Customs is ordered to refund to petitioner the amount of P40,551.00. No costs. (p., 51, Rollo)

Hence, the present recourse by the Commissioner of Customs.

The only issue involved in this petition for review is: Whether a vessel engaged in foreign trade, which berths at a
privately owned wharf or pier, is liable to the payment of the berthing charge under Section 2901 of the Tariff and
Customs Code, which, as amended by Presidential Decree No. 34, reads:

Sec. 2901. Definition. — Berthing charge is the amount assessed against a vessel for mooring or
berthing at a pier, wharf, bulk-head-wharf, river or channel marginal wharf at any national port in the
Philippines; or for mooring or making fast to a vessel so berthed, or for coming or mooring within any
slip, channel, basin, river or canal under the jurisdiction of any national port of the
Philippines:Provided, however, That in the last instance, the charge shall be fifty (50%) per cent of
rates provided for in cases of piers without cargo shed in the succeeding sections. The owner, agent,
operator or master of the vessel is liable for this charge.

Petitioner Commissioner of Customs contends that the government has the authority to impose and collect berthing
fees whether a vessel berths at a private pier or at a national port. On the other hand, private respondent argues
that the right of the government to impose berthing fees is limited to national ports only.

The governing law classifying ports into national ports and municipal ports is Executive Order No. 72, Series of 1936
(O.G. Vol. 35, No. 6, pp. 65-66). A perusal of said executive order discloses the absence of the port of Kiwalan in the
list of national ports mentioned therein.

Furthermore, Paragraph 1 of Executive Order No. 72 expressly provides that "the improvement and maintenance of
national ports shall be financed by the Commonwealth Government, and their administration and operation shall be
under the direct supervision and control of the Insular Collector of Customs." It is undisputed that the port of Kiwalan
was constructed and improved and is operated and maintained solely by and at the expense of the Iligan Express
Corporation, and not by the National Government of the Republic or any of its agencies or instrumentalities.

Petitioner insists that Kiwalan is a national port since it is within the jurisdiction of the collection district and territorial
limits of the national port of Iligan City. The claim is put forward that "Kiwalan simply cannot claim to be an
independent port within a national port without infringing on the territorial jurisdiction of the Port of Iligan", citing the
support thereof Customs Administrative Order No. 1-76 dated February 23, 1976. However, a reading of said
administrative order shows that it was issued merely for administrative purposes redefining the jurisdictional limits of
each Customs Collection District "based on the approved staffing pattern." It has nothing to do with the collection of
berthing fees. On this point we quote with approval the following conclusions of respondent Court of Tax Appeals:

. . . we see no significance therefore in the stand of respondent, as averred as affirmative and

special defenses of his answers, that it is not necessary to list Kiwalan as a national port being
already an integral part of the national port of the city of Iligan, within its territorial limits, jurisdiction
or collection district. Such an assertion, besides being violative of the legal basis for the classification
of ports into national or municipal under Executive Order No. 72, series of 1936, as implemented by
subsequent Republic Acts and Executive Orders, would make all ports in the Philippines national
ports. A port is not classified as a national port just because it is located within the territorial limits or
boundaries of a city or municipality where a national port is situated, much less within the jurisdiction
or collection district of a national port; otherwise, all ports in the Philippines would be classified as
national ports without any municipal ports.

xxx xxx xxx

. . . Customs Administrative Order No. 1-72 dated September 21, 1971, which is entitled as defining
the jurisdictional limits of customs collection districts, divided the entire Philippines into thirty-four
 (34) collection districts. It bears emphasis that no point or locality in the Philippines is not covered by
a collection district, or does not fall within the territorial jurisdiction or limits of a collection district,
with a principal port of entry which is always national port properly, classified and listed as such by
law or executive order. (pp. 47-48, Rollo)

The Bureau of Customs itself in its Customs Memorandum Circular No. 33-73 dated March 29, 1973, does not
accord the status of national port to the port of Kiwalan, nor does the list of national ports appended thereto include
the port of Kiwalan. Moreover, said memorandum circular indicates the specific law (Public Act, Commonwealth Act,
Republic Act or Executive Order) creating a particular national port. Petitioner has not cited or brought to our
attention, and we have found none, any law creating Kiwalan Port as a national port or converting it to one.

It is a settled rule of statutory construction that the express mention of one person, thing, act, or consequence
excludes all others. This rule is expressed in the familiar maxim expressio unius est exclusio alterius. Where a
statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended
to others. The rule proceeds from the premise that the legislature would not have made specified enumerations in a
statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned
(Agpalo, Statutory Construction, 2nd Ed., 1990, pp. 160-161, and the cases therein cited). The port of Kiwalan not
being included in the list of national ports appended to Customs Memorandum Circular No. 33-73 nor in Executive
Order No. 72, it follows inevitably as a matter of law and legal principle that this Court may not properly consider
said port as a national port. To do otherwise would be to legislate on our part and to arrogate into ourselves powers
not conferred on us by the Constitution.

Even the Bureau of Customs in its Customs Memorandum Circular No. 47-73 held —

It appearing that Banago Wharf in Bacolod City is not one of those listed as a national port, the said
part should be considered a municipal, pursuant to the provisions of Executive Order No. 72 series
of 1936. Berthing charges therefore may not be collected from vessels docking thereat. (p. 3,
Customs Memorandum Circular No. 47-73)

Plainly, therefore, the port of Kiwalan is not a national port. However, petitioner maintains that regardless of whether
or not the port of Kiwalan is a national port, berthing charges may still be collected by the Bureau of Customs from
vessels berthing at said port, citing the case of Luzon Stevedoring Corporation vs. Court of Tax Appeals and
Commissioner of Customs (18 SCRA 436 [1966]), where it was held:

Adverting to the terms of the law, it is quite apparent that the government's right to collect berthing
charges is not planted upon the condition that the pier be publicly owned. The statute employs the
word pier — without more. Nothing there said speaks of private or public pier. Where the law does
not exact the nature of ownership as a condition, that condition should not be read into the law. We
are not to indulge in statutory construction. Because the law is clear. Our plain duty is to apply the
law as it is written. So applying, we rule that, berthing or mooring charges here were properly
collected. (at pp. 438-439.)

The above ruling, however, is no longer effective and can not apply in the case at bar for the same was decided
before the Tariff and Customs Code was amended by Presidential Decree No. 34 which took effect thirty days from
October 27, 1972, the date of promulgation.

Section 2901 of the Tariff and Customs Code prior to its amendment and said section as amended by Presidential
Decree No. 34 are hereunder reproduced with the amendments duly highlighted:

Sec. 2901. Definition — Berthing charge is the amount assessed against a vessel for mooring or
berthing at a pier, wharf, bulkhead-wharf, river or channel marginal wharf at any port in the
Philippines; or for mooring or making fast to a vessel so berthed; or for coming or mooring within any
slip, channel, basin, river or canal under the jurisdiction of any port of the Philippines (old TCC)

Sec. 2901. Definition — Berthing charge is the amount assessed a vessel for mooring or berthing at
a pier, wharf, bulkhead-wharf, river or, channel marginal wharf AT ANY NATIONAL PORT IN THE
PHILIPPINES; for mooring or making fast to a vessel so berthed; or for coming or mooring within
 any slip, channel, basin, river, or canal under the jurisdiction of ANY NATIONAL port of the
Philippines;Provided, HOWEVER, THAT IN THE LAST INSTANCE, THE CHARGE SHALL BE FIFTY
(50%) PER CENT OF RATES PROVIDED FOR IN CASES OF PIERS WITHOUT CARGO SHED IN
THE SUCCEEDING SECTIONS.

It will thus be seen that the word "national" before the word "port" is inserted in the amendment. The change in
phraseology by amendment of a provision of law indicates a legislative intent to change the meaning of the
provision from that it originally had (Agpalo, supra, p. 76). The insertion of the word "national" before the word "port"
is a clear indication of the legislative intent to change the meaning of Section 2901 from what it originally meant, and
not a mere surplusage as contended by petitioner, in the sense that the change "merely affirms what customs
authorities had been observing long before the law was amended" (p. 18, Petition). It is the duty of this Court to give
meaning to the amendment. It is, therefore, our considered opinion that under Section 2901 of the Tariff and
Customs Code, as amended by Presidential Decree No. 34, only vessels berthing at national ports are liable for
berthing fees. It is to be stressed that there are differences between national ports and municipal ports, namely: (1)
the maintenance of municipal ports is borne by the municipality, whereas that of the national ports is shouldered by
the national government;
(2) municipal ports are created by executive order, while national ports are usually created by legislation; (3)
berthing fees are not collected by the government from vessels berthing at municipal ports, while such berthing fees
are collected by the government from vessels moored a national ports. The berthing fees imposed upon vessels
berthing at national ports are applied by the national government for the maintenance and repair of said ports. The
national government does not maintain municipal ports which are solely maintained by the municipalities or private
entities which constructed them, as in the case at bar. Thus, no berthing charges may be collected from vessels
moored at municipal ports nor may berthing charges be imposed by a municipal council (Tejam's Commentaries on
the Revised Tariff and Customs Code, p. 2486, citing Circular Letter No. 2981 dated September 30, 1958 quoting
Op. No. 122, s. of 1958 and Op. No. 373, s. of 1940, Sec. of Justice).

The subject vessels, not having berthed at a national port but at the Port of Kiwalan, which was constructed,
operated, and continues to be maintained by private respondent Iligan Express Corporation, are not subject to
berthing charges, and petitioner should refund the berthing fees paid private respondent.

WHEREFORE, the petition is hereby DENIED and the decision of the Court of Tax Appeals AFFIRMED.

SO ORDERED.

Feliciano, Bidin, Romero and Vitug, JJ., concur.

G.R. No. 131012 April 21, 1999

HON. RICARDO T. GLORIA, in his capacity as Secretary of the Department of Education, Culture, and
Sports, petitioner,
vs.
COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG and
NICANOR MARGALLO, respondents.

MENDOZA, J

This case arose out of the unfortunate strikes and walk-outs staged by public school teachers on different dates in
September and October 1990. The illegality of the strikes was declared in our 1991 decision in Manila Public School
Teachers Association v. Laguio, Jr., 1 but many incidents of those strikes are still to be resolved. At issue in this case is
the right to back salaries of teachers who were either dismissed or suspended because they did not report for work but
who were eventually ordered reinstated because they had not been shown to have taken part in the strike, although
reprimanded for being absent without leave.

The facts are as follows:

Private respondents are public school teachers. On various dates in September and October 1990, during the
teachers' strikes, they did not report for work. For this reason, they were administratively charged with (1) grave
misconduct, (2) gross neglect of duty, (3) gross violation of Civil Service Law Rules and Regulations and reasonable
office regulations. (4) refusal to perform official duty, (5) gross insubordination, (6) conduct prejudicial to the best
interest of the service, and (7) absence without leave (AWOL), and placed under preventive suspension. The
investigation was concluded before the lapse of 90-day suspension and private respondents were found guilty as
charged. Respondent Nicanor Margallo was ordered dismissed from the service effective October 29, 1990, while
respondents Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang were ordered suspended for six months
effective December 4, 1990. 2

Respondent Margallo appealed to the Merit Systems and Protection Board (MSPB) which found him guilty of
conduct prejudicial to the best interest of the service and imposed on him a six-month suspension. 3 The other
respondents also appealed to the MSPB, but their appeal was dismissed because of their failure to file their appeal
memorandum on time. 4

On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB with respect to Margallo, but
found the other three (Abad, Bandigas, and Somebang) guilty only of violation of reasonable office rules and
regulation, by filing to file applications for leave of absence and, therefore, reduced the penalty imposed on them to
reprimand and ordered them reinstated to their former positions.

Respondents filed a petition for certiorari under Rule 65 in this Court. Pursuant to Revised Administrative Circular
No. 1-95, the case referred to the Court of Appeals which, on September 3, 1996, rendered a decision (1) affirming
the decision of the CSC with respect to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2) reversing
it insofar as the CSC ordered the suspension of Nicanor Margallo. The appellate court found him guilty of violation of
reasonable office rules and regulations only and imposed on him the penalty of reprimand.

Private respondents moved for a reconsideration, contending that they should be exonerated of all charges against
them and that they be paid salaries during their suspension. In its resolution, dated July 15, 1997, the Court of
Appeals, while maintaining its finding that private respondents were guilty of violation of reasonable office rules and
regulations for which they should be reprimanded, ruled that private respondents were entitled to the payment of
salaries during their suspension "beyond ninety (90) days." Accordingly, the appellate court amended the dispositive
portion of its decision to read as follows:
 WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby DENIED. CSC Resolution Nos.,
93-2302 dated June 24, 1993 and 93-3124 dated August 10, 1993 (In re: Amparo Abad), CSC
Resolution Nos. 93-2304 dated June 24, 1993 and 93-3227 dated August 17, 1993 (In re: Virgilia
Bandigas) and CSC Resolution Nos. 93-2301 undated and 93-3125 dated August 10, 1993 (In re:
Elizabeth Somebang) are hereby AFFIRMED while CSC Resolution Nos. 93-2211 dated June 21,
l993 are hereby MODIFIED finding petitioner Nicanor Margallo guilty of a lesser offense of violation
of reasonable office rules and regulations and meting upon him the penalty of reprimand.
Respondent DECS is ordered to pay petitioners Amparo Abad, Virgilia Bandigas, Elizabeth
Somebang and Nicanor Margallo their salaries, allowances and other benefits during the period of
their suspension/dismissal beyond the ninety (90) day preventive suspension. No pronouncement as
to costs. 6

Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports, moved for a reconsideration insofar
as the resolution of the Court of Appeals ordered the payment of private respondents' salaries during the period of
their appeal. 7 His motion was, however denied by the appellate court in its resolution of October 6, 1997. 8 Hence, this
petition for review on certiorari.

Petitioner contends that the administrative investigation of respondents was concluded within the 90-day period of
preventive suspension, implying that the continued suspension of private respondents is due to their appeal, hence,
the government of their salaries. Moreover, petitioner lays so much store by the fact that, under the law, private
respondents are considered under preventive suspension during the period of their appeal and, for this reason, are
not entitled to the payment of their salaries during their suspension. 9

Petitioner's contentions have no merit.

I. PREVENTIVE SUSPENSION AND THE RIGHT TO COMPENSATION IN CASE

OF EXONERATION

The present Civil Service Law is found in Book V, Title I, Subtitle A of the Administrative Code of 1987 (E.O. 292). So
far as pertinent to the questions in this case, the law provides:

Sec. 47. Disciplinary Jurisdiction

(2) The Secretaries and heads of agencies and instrumetalities, province, cities and municipalities
shall have jurisdiction to investigate and decide matters involving disciplinary action against officers
and employees under their jurisdiction. The decision shall be final in case the penalty imposed is
suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In
case the decision rendered by a bureau or office head is appealable to the Commission, the same
may be initially appealed to the department and finally to the Commission and pending appeal, the
same shall be executory except when the penalty removal, in which case the same shall be
executory only after confirmation by the Secretary concerned.

(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension
or removal, the respondent shall be considered shall be considered having been under preventive
suspension during the pendency of the appeal in the event he wins an appeal.

Sec. 51. Preventive Suspension. — The proper disciplining authority may preventively suspend any
subordinate officer or employee under his authority pending as investigation, if the charge against
such officers or employee involves dishonesty, oppression or grave misconduct, or neglect in the
performance of duty, or if there are reasons to believe that the respondent is guilty of charges which
would warrant his removal from the service.

Sec. 52. Lifting of Preventive Suspension, Pending Administrative Investigation. — When the
administrative case against the officers or employee under preventive suspension is not finally
decided by the disciplining authority within the period of ninety (90) days after the date of suspension
of the respondent who is not a presidential appointee, the respondent shall be automatically
reinstated in the service: Provided, That when the delay in the disposition of the case is due to the
 fault, negligence or petition of the respondents, the period of delay shall not be counted in computing
the period of suspension herein provided.

There are thus two kinds of preventive suspension of civil service employees who are charged with offenses
punishable by removal or suspension: (1) preventive suspension pending investigations (§51) and (2) preventive
suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after
review, the respondent is exonerated (§ 47(4)).

Preventive suspension pending investigation is not a penalty. 10 It is a measure intended to enable to enable the
disciplining authority to investigate charges against respondent by preventing the latter from intimidating or any way
influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the
suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found
innocent of the charges and is exonerated, he should be reinstated.

A. No Right to Compensation for Preventive Suspension Pending Investigation Even if Employee is Exonerated

Is he entitled to the payment of salaries during the period of suspension? As already stated, the Court of Appeals
ordered the DECS to pay private respondents their salaries, allowances, and other benefits "beyond the ninety (90)
day suspension." In other words, no compensation was due for the period of the preventive suspensionpending
investigation but only for the period of preventive suspension pending appeal in the event the employee is
exonerated.

The separate opinion of Justice Panganiban argues that the employee concerned be paid his salaries after his
suspension.

The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such salaries in case of exoneration. Sec.
35 read:

Sec. 35. Lifting of Preventive Suspension Pending Administrative Investigation. — When the
administrative case against the officer or employee under preventive suspension is not finally
decided by the Commissioner of Civil Service within the period of sixty (60) days after the date of
suspension of the respondent, the respondent shall be reinstated in the service. If the respondent
officers or employee is exonerated, he shall be restored to his position with pay for the period of
suspension. 11

However, the law was revised in 1975 and the provision on the payment salaries during suspension was deleted.
Sec. 42 of the Civil Service Decree (P.D. No. 807) read:

Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. — When the
administrative case against the officers or employee under preventive suspension is not finally
decided by the disciplining authority within the period of ninety (90) days after the date of suspension
of the respondent who is not a presidential appointee, the respondent shall be automatically
reinstated in the service; Provided, That when the delay in the disposition of the case is due to the
fault, negligence or petition of the respondent, the period of delay shall not be counted in computing
the period of suspension herein provided.

This provision was reproduced in §52 of the present Civil Service Law. It is noteworthy that the Ombudsman
Act of 1989 (R.A. No. 6770) categorically provides that preventive suspension shall be "without pay." Sec.
24 reads:

Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression
or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal
from the service; or (c) the respondents continued stay in office may prejudice the case filed against
him.
 The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in computing the period of
suspension herein provided.

It is clear that the purpose of the amendment is to disallow the payment of salaries for the period of suspension.
This conclusion is in accord with the rule of statutory construction that —

As a rule, the amendment by deletion of certain words or phrases in a statute indicates that the
legislature intended to change the meaning of the statute, for the presumption is that the legislature
would not have made the deletion had the intention been not in effect a change in its meaning. The
amended statute should accordingly be given a construction different from that previous to its
amendment. 12

The separate opinion of Justice Panganiban pays no heed to the evident legislative intent to deny payment of
salaries for the preventive suspension pending investigation.

First, it says that to deny compensation for the period of preventive suspension would he to reverse the course of
decisions ordering the payment of salaries for such period. However, the cases 13 cited are based either on the former
rule which expressly provided that "if the respondent officer or employee is exonerated, he shall be restored to his position
with full pay for the period of suspension" 14 or that "upon subsequent reinstatement of the suspended person or upon his
exoneration, if death should render reinstatement impossible, any salary so withheld shall be paid, 15 or on cases which do
not really support the proposition advanced.

Second, it is contended that the exoneration of employees who have been preventively suspended is proof that
there was no reason at all to suspend them and thus makes their preventive suspension a penalty.

The principle governing entitlement to salary during suspension is cogently stated in Floyd R. Mechem's A Treatise
on the Law of Public Offices and Officers as follows:

§864. Officer not entitled to Salary during Suspension from

Office. — An officer who has been lawfully suspended from his office is not entitled to compensation
for the period during which he was so suspended, even through it be subsequently determined that
the cause for which he was suspended was insufficient. The reason given is "that salary and
perquisites are the reward of express or implied services, and therefore cannot belong to one who
could not lawfully perform such services." 16

Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must
be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries
corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of
the charges which caused his suspension and [2] when the suspension is unjustified. 17

The preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or
neglect of duty is authorized by the Civil Service Law. It cannot, therefore, be considered "unjustified," even if later
the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is one of those
sacrifices which holding a public office requires for the public good. For this reason, it is limited to ninety (90) days
unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if
the investigation is not finished, the law provides that the employee shall be automatically reinstated.

Third, it is argued in the separate opinion that to deny employees salaries on the "frivolous" ground that the law
does not provide for their payment would be to provide a "tool for the oppression of civil servants who, though
innocent, may be falsely "charged of grave or less grave administrative offenses." Indeed, the possibility of abuse is
not an argument against recognition of the existence of power. As Justice Story aptly it, "It is always a doubtful
course, to argue against the use or existence of a power, from the possibility of its abuse. . . . [For] from the very
nature of things, the absolute right of decision, in the last resort, must rest somewhere — wherever it may be vested
it is susceptible of abuse." 18 It may be added that if and when such abuse occurs, that would be the time for the courts to
exercise their nay-saying function. Until then, however, the public interest in an upright civil service must be upheld.
Finally, it is argued that even in the private sector, the law provides that employees who are unjustly dismissed are
entitled to reinstatement with full pay. But that is because R.A. No. 6715 expressly provides for the payment to such
employees of "full backwages, inclusive of allowances, and . . . other benefits or their monetary equivalent
computed from the time his compensation was withheld from him up to the time of his actual reinstatement." 19 In the
case of the public sector, as has been noted, the provision for payment of salaries during the preventive suspension
pending investigation has been deleted.

B. Right to Compensation for Preventive Suspension

Pending Appeal if Employee is Exonerated

But although we hold that employees who are preventively suspended pending investigation are not entitled to the
payment of their salaries if they are exonerated, we do not agree with the government that they are not entitled to
compensation for the period of their suspension pending appeal if eventually they are found innocent.

Preventive suspension pending investigation, as already discussed, is not a penalty but only means of enabling the
disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending
appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the
administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of
the suspension. Thus, §47(4) states that respondent "shall be considered as under preventive suspension during
the pendency of the appeal in the event he wins." On the other hand, if his conviction is affirmed, i.e., if he is not
exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal.

It is precisely because respondent is penalized before his sentence is confirmed that he should be paid his salaries
in the event he is exonerated. It would be unjust to deprive him of his pay as a result of the immediate execution of
the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he
was suspended. Indeed, to sustain the government's theory would be to make the administrative decision not only
executory but final and executory. The fact is that §47(2) and (4) are similar to the execution of judgment pending
appeal under Rule 39, §2 of the Rules of Court. Rule 39, §5 provides that in the event the executed judgment is
reversed, there shall be restitution or reparation of damages as equity and justice may require.

Sec. 47 of the present law providing that an administrative decision meting out the penalty of suspension or
dismissal shall be immediately executory and that if the respondent appeals he shall be considered as being merely
under preventive suspension if eventually he prevails is taken from §37 of the Civil Service Decree of 1975 (P.D No.
807). There was no similar provision in the Civil Service Act of 1959 (R.A. No. 2260), although under it the
Commissioner of Civil Service could order the immediate execution of an administrative decision in the interest of
the public service. 20 Nor was there provision for immediate execution of administrative decisions ordering dismissal or
suspension in §695 of the Administrative Code of 1917, as amended by C.A. No. 598, §1. 21 Nonetheless, under R.A. No.
2260 the payment of salaries was ordered in cases in which employees were found to be innocent of the charges 22 or
their suspension was held to be unjustified, because the penalty of suspension or dismissal was executed without a
finding by the Civil Service Commissioner that it was necessary "in the interest of the public service." 23 On the other hand,
payment of back salaries was denied where it was shown that the employee concerned was guilty as charged and the
immediate execution of the decision was ordered by the Civil Service Commissioner "in the interest of the public
service." 24

Nothing in what has thus far been said is inconsistent with the reason for denying salaries for the period of
preventive suspension. We have said that an employee who is exonerated is not entitled to the payment of his
salaries because his suspension, being authorized by law, cannot but unjustified. To be entitled to such
compensation, the employee must not only be found innocent of the charges but his suspension must likewise be
unjustified. But through an employee is considered under preventive suspension during the pendency of his appeal
in the event he wins, his suspension is unjustified because what the law authorizes is preventive suspension for a
period not exceeding 90 days. Beyond that period the suspension is illegal. Hence, the employee concerned is
entitled to reinstated with full pay. Under existing jurisprudence, such award should not exceed the equivalent of five
years pay at the rate last received before the suspension was imposed. 25

II. PRIVATE RESPONDENTS ENTITLED TO BACK SALARIES

ALTHOUGH FOUND GUILTY OF VIOLATION OF OFFICE

 RULES AND REGULATIONS AND REPRIMANDED

Private respondents were exonerated of all charges against them for acts connected with the teachers' strikes of
September and October 1990. Although they were absent from work, it was not because of the strike. For being
absent without leave, they were held liable for violation of reasonable offices rules and regulations for which the
penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher
found guilty of having violated reasonable office rules and regulations. Explaining the grant of salaries during their
suspension despite the fact that they were meted out reprimand, this Court stated:

With respect to petitioner Rodolfo Mariano, payment of his backwages is in order. A reading of the
resolution of the Civil Service Commission will show that he was exonerated of the charges which
formed the basis for his suspension. The Secretary of the DECS charged him with and he was later
found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules
and regulations and reasonable office regulations, refusal to perform official duty, gross
insubordination, conduct prejudicial to the best interest of the service, and absence without official
leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged
participation in the mass actions that was the basis of his preventive suspension and, later, his
dismissal from the service.

However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano
was involved in the "mass actions" but was absent because he was in Ilocos Sur to attend the wake
and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand,
the same was for his violation of reasonable office rules and regulations because he failed to inform
the school of his intended absence and neither did he file an application for leave covering such
absences.

Under Section 23 of the Rule Implementing Book V of Executive Order No. 292 and other pertinent
civil service laws, in violations of reasonable office rules and regulations, the first offense is
punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would
be tantamount to punishing him after his exoneration from the charges which caused his dismissal
from the service. 26

In Jacinto v. Court of Appeals, 27 a public school who was found guilty of violation of reasonable office rules and
regulations for having been absent without leave and reprimanded was given back salaries after she was exonerated of
the charge of having taken part in the strikes.

Petitioner Secretary of Education contends, however, that respondent Abad, Bandigas, and Somebang signed a
letter in which they admitted having taken part in the mass action. This question cannot be raised now. The Civil
Service Commission gave no weight to this letter in view of individual letters written by three citing reasons for their
absences, to wit: Abad, because he decided to stay home to correct students papers; Bandigas, because she had to
accompany her brother to the Commission on Immigration, and Somebang because of "economic reasons."
Petitioner did not appeal from this ruling. Hence, he is bound by the fanctual findings of the CSC and the appellate
court.

WHEREFORE, the decision, dated September 3, 1996, as amended by the resolutions, dated July 15, 1997 and
October 6, 1997, of the Court of Appeals, is hereby AFFIRMED with the MODIFICATION that the award of salaries
to private respondents shall be computed from the time of their dismissal/suspension by the Department of
Education, Culture, and Sports until their actual reinstatement, for a period not exceeding five years.

SO ORDERED.

Romero, Bellosillo, Vitug, Kapunan, Quisumbing, Purisima and Gonzaga-Reyes, JJ., concur.

Davide, Jr., C.J., in the result and subject to its modification expressed in its separate opinion of Mr. Justice
Panganiban.

Melo, J., in the result.

Panganiban, J., please see separate opinion.

Puno, Pardo, Buena, Ynares-Santiago, JJ., we joined the separate opinion of Justice Panganiban.

Separate Opinions

PANGANIBAN, J., separate opinion;

I concur with the ponencia insofar as it denies the petition and affirms the Court of Appeals Decision and
Resolutions finding private respondents guilty only of violation of office rules and regulations, meting upon them the
penalty of reprimand and reinstating them in the civil service.

I beg to disagree, however, insofar as it deprives private respondents their back salaries corresponding to the entire
period of their preventive suspension.

Private Respondents Liable

for Violation of Reasonable

Office Rules and Regulations

Like the majority, I do not find any reversible error or abuse of discretion in the factual finding of the Court of Appeals
that private respondents did not actually participate in the September 1991 mass actions staged in violation of law
by various public schoolteachers. They were, however, found to have absented themselves from their classes
without filing an application for leave of absence. For this lapse, they indeed deserve a reprimand, pursuant to
Section 23, Rule XIV (Discipline) of the Rules Implementing the Civil Service Law, as well as existing jurisprudence
which I shall cite later.

Private Respondents Entitled

to Back Salaries Without

Qualification or Deduction

Mr. Justice Mendoza's ponencia defines two kinds of preventive suspension for civil service employees charged with
offenses punishable with removal or suspension: "(1) preventive suspension pending investigation (§51) and (2)
preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal
but, after review, the respondent is exonerated (§47(4)). 1

Accordingly, the esteemed justice makes a distinction in the grant of back salaries. In the first instance, he says, the
suspended employees (pending investigation) are NOT entitled to back pay, regardless of whether they are
eventually exonerated from the charges for which they were investigated. However, if and when they are exonerated
after appeal, they may be granted back salaries, but only those corresponding to the appeal or review period until
actual reinstatement, and not exceeding five years.

This stance being adopted by the majority reverses several unanimous en banc decisions, in which this Court
ordered payment of back salaries without qualification or deduction. In Miranda v. Commission on Audit, 2 noting that
the applicable law mandated that preventive suspension should not be longer than 90 days, deemed Miranda's
suspension for almost eight (8) years unreasonable and unjustified. It thus resolved that he was entitled to back wages for
the period of his suspension not exceeding five (5) years, consistent with existing jurisprudence. 3

In Bangalisan v. Court of Appeals, 4 the Court ordered that Petitioner Mariano "be given back wages without deduction
or qualification from the time he was suspended until his actual reinstatement which, under prevailing jurisprudence,
should not exceed five years." The Court ruled: "To deny petitioner Mariano his back wages during his suspension would
be tantamount to punishing him after his exoneration from the charges which [had] caused his dismissal from the
service." 5

The same rationale was given in Jacinto v. Court of Appeals, 6 in which we also granted Petitioner Jacinto "back
wages, without deduction or qualification, from the time she was suspended until her actual reinstatement, the total of
which, under prevailing jurisprudence, should not exceed five years."

In fact, in Garcia v. Chairman, Commission on Audit, 7 where the petitioner, several years after he had been summarily
dismissed from the government service purportedly for dishonesty, was granted executive clemency "not because of lack
of sufficient proof of his commission of the offense
but . . ., more importantly, he did not commit the offense charged," the Court found it "fair and just to award petitioner full
back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated, . . . without
deduction or qualification." Empathizing with petitioner, the Court
held: 8

. . . Verily, law equity and justice dictate that petitioner be afforded compassion for the
embarrassment, humiliation and, above all, injustice caused to him and his family by his unfounded
dismissal. This Court cannot help surmising the painful stigma that must have caused petitioner, the
incursion on his dignity and reputation, for having been adjudged, albeit wrongfully, a dishonest
man . . .

Indeed, where the suspension of civil servants has, from the very beginning, no reason other than to ensure an
unhampered investigation, there is no justification for withholding their salaries, whether immediately upon
investigation or after appeal or petition for review, much less after their exoneration. They need not even be found
fully innocent of any misdemeanor, as the public school-teachers concerned in Bangalisan and Jacinto who were
actually found to have violated reasonable office rules and regulations. Such administrative offense, however, is
punishable with reprimand only, not suspension or dismissal. Hence, they were granted their back salaries for the
period of their suspension, because they had not committed any grave act warranting their suspension.

The rationale for the grant of back salaries to suspended public servants is their exoneration from the charges
leveled against them that were punishable with either dismissal or suspension. Needless to say, only when the
charges carry either of these extreme administrative penalties may they be preventively suspended pending
investigation. If, after investigation, they are found to be innocent or culpable of lesser offenses not punishable with
suspension or dismissal, they must be immediately reinstated AND granted full back salaries corresponding to the
period of their suspension. In the first place, if they have been found to be not guilty of any offense warranting even
just a suspension, there is no justifiable reason to deprive them of work and of income therefor. In these cases, their
preventive suspension must be deemed unjustified.

The majority admits that preventive suspension pending investigation is not a penalty, but is only a means of
enabling the disciplining authority to conduct an unhampered investigation. 9 Not being a penalty, there is therefore NO
reason to deny employees their salaries for such period, especially after they are proven innocent of any offense
punishable with suspension or dismissal. I respectfully submit that to withhold an exonerated employee's pay for such
period would in fact transform the nature of preventive suspension into a penalty — a penalty which is unauthorized by
law, in contravention of the fundamental right of every individual to due process, and therefore unconstitutional.

The "no-work-no-pay" principle should not be applied in these cases. We must consider that, ordinarily, suspended
employees are willing to work, but they do not have a choice. Because of some serious charges leveled against
them, they are not allowed to report for work. Investigations may take up to ninety (90) days or three (3) months. In
the meantime, they do not receive their salaries and other benefits. And yet, the charges against them may have
been baseless or aggravated without good reason, in which case their suspensions are unjustified ab initio. In these
instances, I repeat, it is but right to grant them full back pays.
Admittedly, the purpose behind preventive suspensions pending investigation is noble. It is intended to enable the
disciplining authorities or the investigating officials to probe the charges against respondents by preventing the latter
from intimidating or in any was influencing witnesses against them. 10 But, I submit, it would be totally unfair to
respondents who are undeserving of the penalty of suspension or dismissal to be deprived of their salaries for such
period. To repeat, they cannot be faulted for not rendering any work during the period of preventive suspension, because
that is merely what the law mandates.

Significantly, the Civil Service Law does not state that exonerated employees are not entitled to back salaries
corresponding to the preventive suspension period. Such silence of the law should not ipso facto be interpreted as a
denial of the right, pursuant to rules on statutory construction. In any event, the rules on the interpretation of laws
are mere tools used to ascertain legislative intent. 11 They are not necessarily applicable at all times, particularly when
the intention to change the meaning of the previous law is not clear. In the case of the present Civil Service Law, which is
found in Executive Order No. 292 issued by then President Corazon Aquino in the exercise of her legislative powers under
the Freedom Constitution, its legislative purpose cannot be clearly established, because it has no recorded deliberations
from which to verify such intent. Consequently, we should not completely rely on the general rule on amendment by
deletion. 12 We should nor hold the omission of words in the later statute as necessarily altering the construction of the
earlier one, for we may do so only "where the intent of the legislature to make such change is clear of construction." 13

In any event, in the absence of an express prohibition on the payment of back salaries, any doubt should be settled
in favor of the employee. As our fundamental law explicitly mandates, "The State shall afford full protection to labor .
. ." 14 This Court has invariably declared that it will not hesitate to tilt the scales of justice in favor of the working class, for
the Constitution dictates that "the State . . . shall protect the rights of workers and promote their welfare." 15There is no
reason not to apply this principle in favor of civil service employees as well, for they are very much part of the working
class. And the government as their employer should set the example in upholding the constitutional mandate to safeguard
their rights and interests.

Needless to say, our Construction stands above all laws; more so, above any treatise including that of Mechem
which the ponencia cites. The interpretation of general laws on public officers in foreign jurisdictions has no
application in the present case, as our law has no explicit injunction against the payment of back salaries for
preventively suspended employees. Moreover, the United States Constitution provides no express mandate, similar
to that found in our Constitution, to "afford full protection to labor" and to "protect the rights of workers and promote
their welfare."

The grant of back pay is a matter not merely of compassion and mercy for employees temporarily suspended from
work but, more important, of justice and equity. The exoneration of the employees proves that there was no reason
at all to suspend them in the first place. To deny them their incomes on the frivolous ground that the law does not
expressly provide for the grant thereof would provide a tool for the oppression of civil servants who, though
innocent, may be falsely charged of grave or less grave administrative offenses. It plainly opens the door to
harassment of public officials and employees by unjustly depriving them of their meager incomes and consequently
subjecting them and their families to difficult circumstances.

Even in the private sector, the law and the existing jurisprudence grant employees who are unjustly dismissed from
work not only reinstatement without loss of seniority rights and other privileges, but also full back wages, inclusive of
allowances and other benefits or benefits or their monetary equivalent, computed from the time their compensation
was withheld from them up to the time they were actually reinstated. 16

Civil Service Law Different

from Ombudsman Act

In this regard, I believe the Civil Service Law should be distinguished from the Ombudsman Act (RA 6770) which
categorically and expressly provides that the suspended employee who is exonerated after preventive suspension is
entitled to reinstatement, but not back salaries, viz.:

Sec. 24. Preventive suspension. — The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression
or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal
 from the service; or (c) the respondent's continued stay in office may prejudice the case filed against
him.

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in computing the period of
suspension herein provided. (Emphasis supplied.)

Hence, in Callanta v. Ombudsman, 17 although some of the petitioners were only reprimanded by the Court for violation
of the Ethical Standards Law, no back pay was awarded.

WHEREFORE, I vote to DENY the petition and to GRANT private respondents full back salaries, without
qualification or deduction, from the time of suspension, including the period of preventive suspension, until actual
reinstatement.

Separate Opinions

PANGANIBAN, J., separate opinion;

I concur with the ponencia insofar as it denies the petition and affirms the Court of Appeals Decision and
Resolutions finding private respondents guilty only of violation of office rules and regulations, meting upon them the
penalty of reprimand and reinstating them in the civil service.

I beg to disagree, however, insofar as it deprives private respondents their back salaries corresponding to the entire
period of their preventive suspension.

Private Respondents Liable

for Violation of Reasonable

Office Rules and Regulations

Like the majority, I do not find any reversible error or abuse of discretion in the factual finding of the Court of Appeals
that private respondents did not actually participate in the September 1991 mass actions staged in violation of law
by various public schoolteachers. They were, however, found to have absented themselves from their classes
without filing an application for leave of absence. For this lapse, they indeed deserve a reprimand, pursuant to
Section 23, Rule XIV (Discipline) of the Rules Implementing the Civil Service Law, as well as existing jurisprudence
which I shall cite later.

Private Respondents Entitled

to Back Salaries Without

Qualification or Deduction

Mr. Justice Mendoza's ponencia defines two kinds of preventive suspension for civil service employees charged with
offenses punishable with removal or suspension: "(1) preventive suspension pending investigation (§51) and (2)
preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal
but, after review, the respondent is exonerated (§47(4)). 1

Accordingly, the esteemed justice makes a distinction in the grant of back salaries. In the first instance, he says, the
suspended employees (pending investigation) are NOT entitled to back pay, regardless of whether they are
eventually exonerated from the charges for which they were investigated. However, if and when they are exonerated
after appeal, they may be granted back salaries, but only those corresponding to the appeal or review period until
actual reinstatement, and not exceeding five years.
This stance being adopted by the majority reverses several unanimous en banc decisions, in which this Court
ordered payment of back salaries without qualification or deduction. In Miranda v. Commission on Audit, 2 noting that
the applicable law mandated that preventive suspension should not be longer than 90 days, deemed Miranda's
suspension for almost eight (8) years unreasonable and unjustified. It thus resolved that he was entitled to back wages for
the period of his suspension not exceeding five (5) years, consistent with existing jurisprudence. 3

In Bangalisan v. Court of Appeals, 4 the Court ordered that Petitioner Mariano "be given back wages without deduction
or qualification from the time he was suspended until his actual reinstatement which, under prevailing jurisprudence,
should not exceed five years." The Court ruled: "To deny petitioner Mariano his back wages during his suspension would
be tantamount to punishing him after his exoneration from the charges which [had] caused his dismissal from the
service." 5

The same rationale was given in Jacinto v. Court of Appeals, 6 in which we also granted Petitioner Jacinto "back
wages, without deduction or qualification, from the time she was suspended until her actual reinstatement, the total of
which, under prevailing jurisprudence, should not exceed five years."

In fact, in Garcia v. Chairman, Commission on Audit, 7 where the petitioner, several years after he had been summarily
dismissed from the government service purportedly for dishonesty, was granted executive clemency "not because of lack
of sufficient proof of his commission of the offense
but . . ., more importantly, he did not commit the offense charged," the Court found it "fair and just to award petitioner full
back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated, . . . without
deduction or qualification." Empathizing with petitioner, the Court
held: 8

. . . Verily, law equity and justice dictate that petitioner be afforded compassion for the
embarrassment, humiliation and, above all, injustice caused to him and his family by his unfounded
dismissal. This Court cannot help surmising the painful stigma that must have caused petitioner, the
incursion on his dignity and reputation, for having been adjudged, albeit wrongfully, a dishonest
man . . .

Indeed, where the suspension of civil servants has, from the very beginning, no reason other than to ensure an
unhampered investigation, there is no justification for withholding their salaries, whether immediately upon
investigation or after appeal or petition for review, much less after their exoneration. They need not even be found
fully innocent of any misdemeanor, as the public school-teachers concerned in Bangalisan and Jacinto who were
actually found to have violated reasonable office rules and regulations. Such administrative offense, however, is
punishable with reprimand only, not suspension or dismissal. Hence, they were granted their back salaries for the
period of their suspension, because they had not committed any grave act warranting their suspension.

The rationale for the grant of back salaries to suspended public servants is their exoneration from the charges
leveled against them that were punishable with either dismissal or suspension. Needless to say, only when the
charges carry either of these extreme administrative penalties may they be preventively suspended pending
investigation. If, after investigation, they are found to be innocent or culpable of lesser offenses not punishable with
suspension or dismissal, they must be immediately reinstated AND granted full back salaries corresponding to the
period of their suspension. In the first place, if they have been found to be not guilty of any offense warranting even
just a suspension, there is no justifiable reason to deprive them of work and of income therefor. In these cases, their
preventive suspension must be deemed unjustified.

The majority admits that preventive suspension pending investigation is not a penalty, but is only a means of
enabling the disciplining authority to conduct an unhampered investigation. 9 Not being a penalty, there is therefore NO
reason to deny employees their salaries for such period, especially after they are proven innocent of any offense
punishable with suspension or dismissal. I respectfully submit that to withhold an exonerated employee's pay for such
period would in fact transform the nature of preventive suspension into a penalty — a penalty which is unauthorized by
law, in contravention of the fundamental right of every individual to due process, and therefore unconstitutional.

The "no-work-no-pay" principle should not be applied in these cases. We must consider that, ordinarily, suspended
employees are willing to work, but they do not have a choice. Because of some serious charges leveled against
them, they are not allowed to report for work. Investigations may take up to ninety (90) days or three (3) months. In
the meantime, they do not receive their salaries and other benefits. And yet, the charges against them may have
been baseless or aggravated without good reason, in which case their suspensions are unjustified ab initio. In these
instances, I repeat, it is but right to grant them full back pays.

Admittedly, the purpose behind preventive suspensions pending investigation is noble. It is intended to enable the
disciplining authorities or the investigating officials to probe the charges against respondents by preventing the latter
from intimidating or in any was influencing witnesses against them. 10 But, I submit, it would be totally unfair to
respondents who are undeserving of the penalty of suspension or dismissal to be deprived of their salaries for such
period. To repeat, they cannot be faulted for not rendering any work during the period of preventive suspension, because
that is merely what the law mandates.

Significantly, the Civil Service Law does not state that exonerated employees are not entitled to back salaries
corresponding to the preventive suspension period. Such silence of the law should not ipso facto be interpreted as a
denial of the right, pursuant to rules on statutory construction. In any event, the rules on the interpretation of laws
are mere tools used to ascertain legislative intent. 11 They are not necessarily applicable at all times, particularly when
the intention to change the meaning of the previous law is not clear. In the case of the present Civil Service Law, which is
found in Executive Order No. 292 issued by then President Corazon Aquino in the exercise of her legislative powers under
the Freedom Constitution, its legislative purpose cannot be clearly established, because it has no recorded deliberations
from which to verify such intent. Consequently, we should not completely rely on the general rule on amendment by
deletion. 12 We should nor hold the omission of words in the later statute as necessarily altering the construction of the
earlier one, for we may do so only "where the intent of the legislature to make such change is clear of construction." 13

In any event, in the absence of an express prohibition on the payment of back salaries, any doubt should be settled
in favor of the employee. As our fundamental law explicitly mandates, "The State shall afford full protection to labor .
. ." 14 This Court has invariably declared that it will not hesitate to tilt the scales of justice in favor of the working class, for
the Constitution dictates that "the State . . . shall protect the rights of workers and promote their welfare." 15There is no
reason not to apply this principle in favor of civil service employees as well, for they are very much part of the working
class. And the government as their employer should set the example in upholding the constitutional mandate to safeguard
their rights and interests.

Needless to say, our Construction stands above all laws; more so, above any treatise including that of Mechem
which the ponencia cites. The interpretation of general laws on public officers in foreign jurisdictions has no
application in the present case, as our law has no explicit injunction against the payment of back salaries for
preventively suspended employees. Moreover, the United States Constitution provides no express mandate, similar
to that found in our Constitution, to "afford full protection to labor" and to "protect the rights of workers and promote
their welfare."

The grant of back pay is a matter not merely of compassion and mercy for employees temporarily suspended from
work but, more important, of justice and equity. The exoneration of the employees proves that there was no reason
at all to suspend them in the first place. To deny them their incomes on the frivolous ground that the law does not
expressly provide for the grant thereof would provide a tool for the oppression of civil servants who, though
innocent, may be falsely charged of grave or less grave administrative offenses. It plainly opens the door to
harassment of public officials and employees by unjustly depriving them of their meager incomes and consequently
subjecting them and their families to difficult circumstances.

Even in the private sector, the law and the existing jurisprudence grant employees who are unjustly dismissed from
work not only reinstatement without loss of seniority rights and other privileges, but also full back wages, inclusive of
allowances and other benefits or benefits or their monetary equivalent, computed from the time their compensation
was withheld from them up to the time they were actually reinstated. 16

Civil Service Law Different

from Ombudsman Act

In this regard, I believe the Civil Service Law should be distinguished from the Ombudsman Act (RA 6770) which
categorically and expressly provides that the suspended employee who is exonerated after preventive suspension is
entitled to reinstatement, but not back salaries, viz.:
 Sec. 24. Preventive suspension. — The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression
or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal
from the service; or (c) the respondent's continued stay in office may prejudice the case filed against
him.

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in computing the period of
suspension herein provided. (Emphasis supplied.)

Hence, in Callanta v. Ombudsman, 17 although some of the petitioners were only reprimanded by the Court for violation
of the Ethical Standards Law, no back pay was awarded.

WHEREFORE, I vote to DENY the petition and to GRANT private respondents full back salaries, without
qualification or deduction, from the time of suspension, including the period of preventive suspension, until actual
reinstatement.
G.R. No. 106719 September 21, 1993

DRA. BRIGIDA S. BUENASEDA, Lt. Col. ISABELO BANEZ, JR., ENGR. CONRADO REY MATIAS, Ms. CORA S.
SOLIS and Ms. ENYA N. LOPEZ, petitioners,
vs.
SECRETARY JUAN FLAVIER, Ombudsman CONRADO M. VASQUEZ, and NCMH NURSES ASSOCIATION,
represented by RAOULITO GAYUTIN, respondents.

Renato J. Dilag and Benjamin C. Santos for petitioners.

Danilo C. Cunanan for respondent Ombudsman.

Crispin T. Reyes and Florencio T. Domingo for private respondent.

QUIASON, J.:

This is a Petition for Certiorari, Prohibition and Mandamus, with Prayer for Preliminary Injunction or Temporary
Restraining Order, under Rule 65 of the Revised Rules of Court.

Principally, the petition seeks to nullify the Order of the Ombudsman dated January 7, 1992, directing the preventive
suspension of petitioners,
Dr. Brigida S. Buenaseda, Chief of Hospital III; Isabelo C. Banez, Jr., Administrative Officer III; Conrado Rey Matias,
Technical Assistant to the Chief of Hospital; Cora C. Solis, Accountant III; and Enya N. Lopez, Supply Officer III, all
of the National Center for Mental Health. The petition also asks for an order directing the Ombudsman to disqualify
Director Raul Arnaw and Investigator Amy de Villa-Rosero, of the Office of the Ombudsman, from participation in the
preliminary investigation of the charges against petitioner (Rollo, pp. 2-17; Annexes to Petition, Rollo, pp. 19-21).

The questioned order was issued in connection with the administrative complaint filed with the Ombudsman (OBM-
ADM-0-91-0151) by the private respondents against the petitioners for violation of the Anti-Graft and Corrupt
Practices Act.

According to the petition, the said order was issued upon the recommendation of Director Raul Arnaw and
Investigator Amy de Villa-Rosero, without affording petitioners the opportunity to controvert the charges filed against
them. Petitioners had sought to disqualify Director Arnaw and Investigator Villa-Rosero for manifest partiality and
bias (Rollo, pp. 4-15).

On September 10, 1992, this Court required respondents' Comment on the petition.

On September 14 and September 22, 1992, petitioners filed a "Supplemental Petition (Rollo, pp. 124-130); Annexes
to Supplemental Petition; Rollo pp. 140-163) and an "Urgent Supplemental Manifestation" (Rollo,
pp. 164-172; Annexes to Urgent Supplemental Manifestation; Rollo, pp. 173-176), respectively, averring
developments that transpired after the filing of the petition and stressing the urgency for the issuance of the writ of
preliminary injunction or temporary restraining order.

On September 22, 1992, this Court ". . . Resolved to REQUIRE the respondents to MAINTAIN in the meantime,
the STATUS QUO pending filing of comments by said respondents on the original supplemental manifestation"
(Rollo, p. 177).
On September 29, 1992, petitioners filed a motion to direct respondent Secretary of Health to comply with the
Resolution dated September 22, 1992 (Rollo, pp. 182-192, Annexes, pp. 192-203). In a Resolution dated October 1,
1992, this Court required respondent Secretary of Health to comment on the said motion.

On September 29, 1992, in a pleading entitled "Omnibus Submission," respondent NCMH Nurses Association
submitted its Comment to the Petition, Supplemental Petition and Urgent Supplemental Manifestation. Included in
said pleadings were the motions to hold the lawyers of petitioners in contempt and to disbar them (Rollo, pp. 210-
267). Attached to the "Omnibus Submission" as annexes were the orders and pleadings filed in Administrative Case
No. OBM-ADM-0-91-1051 against petitioners (Rollo, pp. 268-480).

The Motion for Disbarment charges the lawyers of petitioners with:

(1) unlawfully advising or otherwise causing or inducing their clients — petitioners Buenaseda, et al., to openly defy,
ignore, disregard, disobey or otherwise violate, maliciously evade their preventive suspension by Order of July 7,
1992 of the Ombudsman . . ."; (2) "unlawfully interfering with and obstructing the implementation of the said order
(Omnibus Submission, pp. 50-52; Rollo, pp. 259-260); and (3) violation of the Canons of the Code of Professional
Responsibility and of unprofessional and unethical conduct "by foisting blatant lies, malicious falsehood and
outrageous deception" and by committing subornation of perjury, falsification and fabrication in their pleadings
(Omnibus Submission, pp. 52-54; Rollo, pp. 261-263).

On November 11, 1992, petitioners filed a "Manifestation and Supplement to 'Motion to Direct Respondent Secretary
of Health to Comply with 22 September 1992 Resolution'" (Manifestation attached to Rollo without pagination
between pp. 613 and 614 thereof).

On November 13, 1992, the Solicitor General submitted its Comment dated November 10, 1992, alleging that: (a)
"despite the issuance of the September 22, 1992 Resolution directing respondents to maintain the status quo,
respondent Secretary refuses to hold in abeyance the implementation of petitioners' preventive suspension; (b) the
clear intent and spirit of the Resolution dated September 22, 1992 is to hold in abeyance the implementation of
petitioners' preventive suspension, the status quo obtaining the time of the filing of the instant petition; (c)
respondent Secretary's acts in refusing to hold in abeyance implementation of petitioners' preventive suspension
and in tolerating and approving the acts of Dr. Abueva, the OIC appointed to replace petitioner Buenaseda, are in
violation of the Resolution dated September 22, 1992; and
(d) therefore, respondent Secretary should be directed to comply with the Resolution dated September 22, 1992
immediately, by restoring the status quo ante contemplated by the aforesaid resolution" (Comment attached
toRollo without paginations between pp. 613-614 thereof).

In the Resolution dated November 25, 1992, this Court required respondent Secretary to comply with the
aforestated status quo order, stating inter alia, that:

It appearing that the status quo ante litem motam, or the last peaceable uncontested status which
preceded the present controversy was the situation obtaining at the time of the filing of the petition at
bar on September 7, 1992 wherein petitioners were then actually occupying their respective
positions, the Court hereby ORDERS that petitioners be allowed to perform the duties of their
respective positions and to receive such salaries and benefits as they may be lawfully entitled to,
and that respondents and/or any and all persons acting under their authority desist and refrain from
performing any act in violation of the aforementioned Resolution of September 22, 1992 until further
orders from the Court (Attached to Rollo after p. 615 thereof).

On December 9, 1992, the Solicitor General, commenting on the Petition, Supplemental Petition and Supplemental
Manifestation, stated that (a) "The authority of the Ombudsman is only to recommend suspension and he has no
direct power to suspend;" and (b) "Assuming the Ombudsman has the power to directly suspend a government
official or employee, there are conditions required by law for the exercise of such powers; [and] said conditions have
not been met in the instant case" (Attached to Rollo without pagination).

In the pleading filed on January 25, 1993, petitioners adopted the position of the Solicitor General that the
Ombudsman can only suspend government officials or employees connected with his office. Petitioners also refuted
private respondents' motion to disbar petitioners' counsel and to cite them for contempt (Attached to Rollowithout
pagination).
The crucial issue to resolve is whether the Ombudsman has the power to suspend government officials and
employees working in offices other than the Office of the Ombudsman, pending the investigation of the
administrative complaints filed against said officials and employees.

In upholding the power of the Ombudsman to preventively suspend petitioners, respondents (Urgent Motion to
LiftStatus Quo, etc, dated January 11, 1993, pp. 10-11), invoke Section 24 of R.A. No. 6770, which provides:

Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression
or grave misconduct or neglect in the performance of duty; (b) the charge would warrant removal
from the service; or (c) the respondent's continued stay in office may prejudice the case filed against
him.

The preventive suspension shall continue until the case is terminated by the Office of Ombudsman
but not more than six months, without pay, except when the delay in the disposition of the case by
the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which
case the period of such delay shall not be counted in computing the period of suspension herein
provided.

Respondents argue that the power of preventive suspension given the Ombudsman under Section 24 of R.A. No.
6770 was contemplated by Section 13 (8) of Article XI of the 1987 Constitution, which provides that the Ombudsman
shall exercise such other power or perform such functions or duties as may be provided by law."

On the other hand, the Solicitor General and the petitioners claim that under the 1987 Constitution, the Ombudsman
can only recommend to the heads of the departments and other agencies the preventive suspension of officials and
employees facing administrative investigation conducted by his office. Hence, he cannot order the preventive
suspension himself.

They invoke Section 13(3) of the 1987 Constitution which provides that the Office of the Ombudsman shall
haveinter alia the power, function, and duty to:

Direct the officer concerned to take appropriate action against a public official or employee at fault,
and recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure
compliance therewith.

The Solicitor General argues that under said provision of the Constitutions, the Ombudsman has three distinct
powers, namely: (1) direct the officer concerned to take appropriate action against public officials or employees at
fault; (2) recommend their removal, suspension, demotion fine, censure, or prosecution; and (3) compel compliance
with the recommendation (Comment dated December 3, 1992, pp. 9-10).

The line of argument of the Solicitor General is a siren call that can easily mislead, unless one bears in mind that
what the Ombudsman imposed on petitioners was not a punitive but only a preventive suspension.

When the constitution vested on the Ombudsman the power "to recommend the suspension" of a public official or
employees (Sec. 13 [3]), it referred to "suspension," as a punitive measure. All the words associated with the word
"suspension" in said provision referred to penalties in administrative cases, e.g. removal, demotion, fine, censure.
Under the rule of Noscitor a sociis, the word "suspension" should be given the same sense as the other words with
which it is associated. Where a particular word is equally susceptible of various meanings, its correct construction
may be made specific by considering the company of terms in which it is found or with which it is associated (Co
Kim Chan v. Valdez Tan Keh, 75 Phil. 371 [1945]; Caltex (Phils.) Inc. v. Palomar, 18 SCRA 247 [1966]).

Section 24 of R.A. No. 6770, which grants the Ombudsman the power to preventively suspend public officials and
employees facing administrative charges before him, is a procedural, not a penal statute. The preventive
suspension is imposed after compliance with the requisites therein set forth, as an aid in the investigation of the
administrative charges.
Under the Constitution, the Ombudsman is expressly authorized to recommend to the appropriate official the
discipline or prosecution of erring public officials or employees. In order to make an intelligent determination whether
to recommend such actions, the Ombudsman has to conduct an investigation. In turn, in order for him to conduct
such investigation in an expeditious and efficient manner, he may need to suspend the respondent.

The need for the preventive suspension may arise from several causes, among them, the danger of tampering or
destruction of evidence in the possession of respondent; the intimidation of witnesses, etc. The Ombudsman should
be given the discretion to decide when the persons facing administrative charges should be preventively
suspended.

Penal statutes are strictly construed while procedural statutes are liberally construed (Crawford, Statutory
Construction, Interpretation of Laws, pp. 460-461; Lacson v. Romero, 92 Phil. 456 [1953]). The test in determining if
a statute is penal is whether a penalty is imposed for the punishment of a wrong to the public or for the redress of an
injury to an individual (59 Corpuz Juris, Sec. 658; Crawford, Statutory Construction, pp. 496-497). A Code
prescribing the procedure in criminal cases is not a penal statute and is to be interpreted liberally (People v. Adler,
140 N.Y. 331; 35 N.E. 644).

The purpose of R.A. No. 6770 is to give the Ombudsman such powers as he may need to perform efficiently the
task committed to him by the Constitution. Such being the case, said statute, particularly its provisions dealing with
procedure, should be given such interpretation that will effectuate the purposes and objectives of the Constitution.
Any interpretation that will hamper the work of the Ombudsman should be avoided.

A statute granting powers to an agency created by the Constitution should be liberally construed for the
advancement of the purposes and objectives for which it was created (Cf. Department of Public Utilities v. Arkansas
Louisiana Gas. Co., 200 Ark. 983, 142 S.W. (2d) 213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190 N.E., 438
[1934]).

In Nera v. Garcia, 106 Phil. 1031 [1960], this Court, holding that a preventive suspension is not a penalty, said:

Suspension is a preliminary step in an administrative investigation. If after such investigation, the

charges are established and the person investigated is found guilty of acts warranting his removal,
then he is removed or dismissed. This is the penalty.

To support his theory that the Ombudsman can only preventively suspend respondents in administrative cases who
are employed in his office, the Solicitor General leans heavily on the phrase "suspend any officer or employee under
his authority" in Section 24 of R.A. No. 6770.

The origin of the phrase can be traced to Section 694 of the Revised Administrative Code, which dealt with
preventive suspension and which authorized the chief of a bureau or office to "suspend any subordinate or
employee in his bureau or under his authority pending an investigation . . . ."

Section 34 of the Civil Service Act of 1959 (R.A. No. 2266), which superseded Section 694 of the Revised
Administrative Code also authorized the chief of a bureau or office to "suspend any subordinate officer or
employees, in his bureau or under his authority."

However, when the power to discipline government officials and employees was extended to the Civil Service
Commission by the Civil Service Law of 1975 (P.D. No. 805), concurrently with the President, the Department
Secretaries and the heads of bureaus and offices, the phrase "subordinate officer and employee in his bureau" was
deleted, appropriately leaving the phrase "under his authority." Therefore, Section 41 of said law only mentions that
the proper disciplining authority may preventively suspend "any subordinate officer or employee under his authority
pending an investigation . . ." (Sec. 41).

The Administrative Code of 1987 also empowered the proper disciplining authority to "preventively suspend any
subordinate officer or employee under his authority pending an investigation" (Sec. 51).

The Ombudsman Law advisedly deleted the words "subordinate" and "in his bureau," leaving the phrase to read
"suspend any officer or employee under his authority pending an investigation . . . ." The conclusion that can be
deduced from the deletion of the word "subordinate" before and the words "in his bureau" after "officer or employee"
is that the Congress intended to empower the Ombudsman to preventively suspend all officials and employees
under investigation by his office, irrespective of whether they are employed "in his office" or in other offices of the
government. The moment a criminal or administrative complaint is filed with the Ombudsman, the respondent
therein is deemed to be "in his authority" and he can proceed to determine whether said respondent should be
placed under preventive suspension.

In their petition, petitioners also claim that the Ombudsman committed grave abuse of discretion amounting to lack
of jurisdiction when he issued the suspension order without affording petitioners the opportunity to confront the
charges against them during the preliminary conference and even after petitioners had asked for the disqualification
of Director Arnaw and Atty. Villa-Rosero (Rollo, pp. 6-13). Joining petitioners, the Solicitor General contends that
assuming arguendo that the Ombudsman has the power to preventively suspend erring public officials and
employees who are working in other departments and offices, the questioned order remains null and void for his
failure to comply with the requisites in Section 24 of the Ombudsman Law (Comment dated December 3, 1992, pp.
11-19).

Being a mere order for preventive suspension, the questioned order of the Ombudsman was validly issued even
without a full-blown hearing and the formal presentation of evidence by the parties. In Nera, supra, petitioner therein
also claimed that the Secretary of Health could not preventively suspend him before he could file his answer to the
administrative complaint. The contention of petitioners herein can be dismissed perfunctorily by holding that the
suspension meted out was merely preventive and therefore, as held in Nera, there was "nothing improper in
suspending an officer pending his investigation and before tho charges against him are heard . . . (Nera v.
Garcia., supra).

There is no question that under Section 24 of R.A. No. 6770, the Ombudsman cannot order the preventive
suspension of a respondent unless the evidence of guilt is strong and (1) the charts against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (2) the charge
would warrant removal from the service; or (3) the respondent's continued stay in office may prejudice the case filed
against him.

The same conditions for the exercise of the power to preventively suspend officials or employees under
investigation were found in Section 34 of R.A. No. 2260.

The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence
of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of
guilt to the "judgment" of the Ombudsman on the basis of the administrative complaint. In the case at bench, the
Ombudsman issued the order of preventive suspension only after: (a) petitioners had filed their answer to the
administrative complaint and the "Motion for the Preventive Suspension" of petitioners, which incorporated the
charges in the criminal complaint against them (Annex 3, Omnibus Submission, Rollo, pp. 288-289; Annex 4, Rollo,
pp. 290-296); (b) private respondent had filed a reply to the answer of petitioners, specifying 23 cases of
harassment by petitioners of the members of the private respondent (Annex 6, Omnibus Submission, Rollo, pp. 309-
333); and (c) a preliminary conference wherein the complainant and the respondents in the administrative case
agreed to submit their list of witnesses and documentary evidence.

Petitioners herein submitted on November 7, 1991 their list of exhibits (Annex 8 of Omnibus Submission, Rollo, pp.
336-337) while private respondents submitted their list of exhibits (Annex 9 of Omnibus Submission, Rollo, pp. 338-
348).

Under these circumstances, it can not be said that Director Raul Arnaw and Investigator Amy de Villa-Rosero acted
with manifest partiality and bias in recommending the suspension of petitioners. Neither can it be said that the
Ombudsman had acted with grave abuse of discretion in acting favorably on their recommendation.

The Motion for Contempt, which charges the lawyers of petitioners with unlawfully causing or otherwise inducing
their clients to openly defy and disobey the preventive suspension as ordered by the Ombudsman and the Secretary
of Health can not prosper (Rollo, pp. 259-261). The Motion should be filed, as in fact such a motion was filed, with
the Ombudsman. At any rate, we find that the acts alleged to constitute indirect contempt were legitimate measures
taken by said lawyers to question the validity and propriety of the preventive suspension of their clients.
On the other hand, we take cognizance of the intemperate language used by counsel for private respondents hurled
against petitioners and their counsel (Consolidated: (1) Comment on Private Respondent" "Urgent Motions, etc.;
(2) Adoption of OSG's Comment; and (3) Reply to Private Respondent's Comment and Supplemental Comment, pp.
4-5).

A lawyer should not be carried away in espousing his client's cause. The language of a lawyer, both oral or written,
must be respectful and restrained in keeping with the dignity of the legal profession and with his behavioral attitude
toward his brethren in the profession (Lubiano v. Gordolla, 115 SCRA 459 [1982]). The use of abusive language by
counsel against the opposing counsel constitutes at the same time a disrespect to the dignity of the court of justice.
Besides, the use of impassioned language in pleadings, more often than not, creates more heat than light.

The Motion for Disbarment (Rollo, p. 261) has no place in the instant special civil action, which is confined to
questions of jurisdiction or abuse of discretion for the purpose of relieving persons from the arbitrary acts of judges
and quasi-judicial officers. There is a set of procedure for the discipline of members of the bar separate and apart
from the present special civil action.

WHEREFORE, the petition is DISMISSED and the Status quo ordered to be maintained in the Resolution dated
September 22, 1992 is LIFTED and SET ASIDE.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo, Puno and Vitug,
JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

BELLOSILLO, J., concurring:

I agree that the Ombudsman has the authority, under Sec. 24 of R.A.
No. 6770, to preventively suspend any government official or employee administratively charged before him pending
the investigation of the complaint, the reason being that respondent's continued stay in office may prejudice the
prosecution of the case.

However, in the case before us, I am afraid that the facts thus far presented may not provide adequate basis to
reasonably place petitioners under preventive suspension. For, it is not enough to rule that the Ombudsman has
authority to suspend petitioners preventively while the case is in progress before him. Equally important is the
determination whether it is necessary to issue the preventive suspension under the circumstances. Regretfully, I
cannot see any sufficient basis to justify the preventive suspension. That is why, I go for granting oral argument to
the parties so that we can truthfully determine whether the preventive suspension of respondents are warranted by
the facts. We may be suspending key government officials and employees on the basis merely of speculations
which may not serve the ends of justice but which, on the other hand, deprive them of their right to due process. The
simultaneous preventive suspension of top officials and employees of the National Center for Mental Health may
just disrupt, the hospital's normal operations, much to the detriment of public service. We may safely assume that it
is not easy to replace them in their respective functions as those substituting them may be taking over for the first
time. The proper care of mental patients may thus be unduly jeopardized and their lives and limbs imperilled.
I would be amenable to holding oral argument to hear the parties if only to have enough factual and legal bases to
justify the preventive suspension of petitioners.

# Separate Opinions

BELLOSILLO, J., concurring:

I agree that the Ombudsman has the authority, under Sec. 24 of R.A.
No. 6770, to preventively suspend any government official or employee administratively charged before him pending
the investigation of the complaint, the reason being that respondent's continued stay in office may prejudice the
prosecution of the case.

However, in the case before us, I am afraid that the facts thus far presented may not provide adequate basis to
reasonably place petitioners under preventive suspension. For, it is not enough to rule that the Ombudsman has
authority to suspend petitioners preventively while the case is in progress before him. Equally important is the
determination whether it is necessary to issue the preventive suspension under the circumstances. Regretfully, I
cannot see any sufficient basis to justify the preventive suspension. That is why, I go for granting oral argument to
the parties so that we can truthfully determine whether the preventive suspension of respondents are warranted by
the facts. We may be suspending key government officials and employees on the basis merely of speculations
which may not serve the ends of justice but which, on the other hand, deprive them of their right to due process. The
simultaneous preventive suspension of top officials and employees of the National Center for Mental Health may
just disrupt, the hospital's normal operations, much to the detriment of public service. We may safely assume that it
is not easy to replace them in their respective functions as those substituting them may be taking over for the first
time. The proper care of mental patients may thus be unduly jeopardized and their lives and limbs imperilled.

I would be amenable to holding oral argument to hear the parties if only to have enough factual and legal bases to
justify the preventive suspension of petitioners.
G.R. No. 141314 April 9, 2003

REPUBLIC OF THE PHILIPPINES, REPRESENTED BY ENERGY REGULATORY BOARD, petitioner,

vs.
MANILA ELECTRIC COMPANY, respondent.

x-----------------------------x

G.R. No. 141369 April 9, 2003

LAWYERS AGAINST MONOPOLY AND POVERTY (LAMP) consisting of CEFERINO PADUA, Chairman, G.
FULTON ACOSTA, GALILEO BRION, ANATALIA BUENAVENTURA, PEDRO CASTILLO, NAPOLEON
CORONADO, ROMEO ECHAUZ, FERNANDO GAITE, ALFREDO DE GUZMAN, ROGELIO KARAGDAG, JR.,
MA. LUZ ARZAGA-MENDOZA, ANSBERTO PAREDES, AQUILINO PIMENTEL III, MARIO REYES, EMMANUEL
SANTOS, RUDEGELIO TACORDA, members, and ROLANDO ARZAGA, Secretary-General, JUSTICE
ABRAHAM SARMIENTO, SENATOR AQUILINO PIMENTEL, JR. and COMMISSIONER BARTOLOME
FERNANDEZ, JR., Board of Consultants, and Lawyer GENARO LUALHATI, petitioners,
vs.
MANILA ELECTRIC COMPANY (MERALCO), respondent.

RESOLUTION

PUNO, J.:

The business and operations of a public utility are imbued with public interest. In a very real sense, a public utility is
engaged in public service-- providing basic commodities and services indispensable to the interest of the general
public. For this reason, a public utility submits to the regulation of government authorities and surrenders certain
business prerogatives, including the amount of rates that may be charged by it. It is the imperative duty of the State
to interpose its protective power whenever too much profits become the priority of public utilities.

For resolution is the Motion for Reconsideration filed by respondent Manila Electric Company (MERALCO) on
December 5, 2002 from the decision of this Court dated November 15, 2002 reducing MERALCO's rate adjustment
in the amount of P0.017 per kilowatthour (kwh) for its billing cycles beginning 1994 and further directing MERALCO
to credit the excess average amount of P0.167 per kwh to its customers starting with MERALCO's billing cycles
beginning February 1994.1

First, we leapfrog through the facts. On December 23, 1993, MERALCO filed with the Energy Regulatory Board
(ERB) an application for revised rates, with an average increase of P0.21 per kwh in its distribution charge. On
January 28, 1994 the ERB granted a provisional increase of P0.184 per kwh subject to the condition that in the
event the ERB determines that MERALCO is entitled to a lesser increase in rates, all excess amounts collected by
MERALCO shall be refunded to its customers or credited in their favor. The Commission on Audit (COA) conducted
an examination of the books of accounts and records of MERALCO and thereafter recommended, among others,
that: (1) income taxes paid by MERALCO should not be included as part of MERALCO's operating expenses and
(2) the "net average investment method" or the "number of months use method" should be applied in determining
the proportionate value of the properties used by MERALCO during the test year.

In its decision dated February 16, 1998, the ERB adopted the recommendations of the COA and authorized
MERALCO to adopt a rate adjustment of P0.017 per kilowatthour (kwh) for its billing cycles beginning 1994. The
ERB further directed MERALCO to credit the excess average amount of P0.167 per kwh to its customers starting
with MERALCO's billing cycles beginning February 1994. The said ruling of the ERB was affirmed by this Court in its
decision dated November 15, 2002.

In its Motion for Reconsideration, respondent MERALCO contends that: (1) the deduction of income tax from
revenues allowed for rate determination of public utilities is part of its constitutional right to property; (2) it correctly
used the "average investment method" or the "simple average" in computing the value of its properties entitled to a
return instead of the "net average investment method" or the "number of months use method"; and (3) the decision
of the ERB ordering the refund of P0.167 per kwh to its customers should not be given retroactive effect. 2

The Republic of the Philippines through the ERB, now Energy Regulatory Commission (ERC), represented by the
Office of the Solicitor General, filed its Comment on March 7, 2003. Surprisingly, in its Comment, the ERC proffered
a divergent view from the Office of the Solicitor General. The ERC submits that income taxes are not operating
expenses but are reasonable costs that may be recoverable from the consuming public. While the ERC admits that
"there is still no categorical determination on whether income tax should indeed be deducted from revenues of a
public utility," it agrees with MERALCO that to disallow public utilities from recovering its income tax payments will
effectively lower the return on rate base enjoyed by a public utility to 8%. The ERC, however, agrees with this
Court's ruling that the use of the "net average investment method" or the "number of months use method" is not
unreasonable.3

The Office of the Solicitor General, under its solemn duty to protect the interests of the people, defended the thesis
that income tax payments by a public utility should not be recovered as costs from the consuming public. It
contended that: (1) the foreign jurisprudence cited by MERALCO in support of its position is not applicable in this
jurisdiction; (2) MERALCO was given a fair rate of return; (3) the COA and the ERB followed the National
Accounting and Auditing Manual which expressly disallows the treatment of income tax as operating expense; (4)
Executive Order No. 72 does not grant electric utilities the privilege of treating income tax as operating expense; (5)
the COA and the ERB have been consistent in not allowing income tax as part of operating expenses; (6) ERB
decisions allowing the application of a tax recovery clause are inapropos; (7) allowing MERALCO to treat income tax
as an operating expense would set a dangerous precedent; (8) assuming that the disallowance of income tax as
operating expense would discourage foreign investors and lenders, the government is not precluded from enacting
laws and instituting measures to lure them back; and (9) the findings and conclusions of the ERB carry great weight
and should be binding on the courts in the absence of grave abuse of discretion. The Solicitor General agrees with
the ERC that the "net average investment method" is a reasonable method for property valuation. Finally, the
Solicitor General argues that the ERB decision may be applied retroactively and the use of a test period to
determine the rate base and allowable rates to be collected by a public utility is an accepted practice. 4

We shall discuss the main issues in seriatim.

MERALCO argues that deduction of all kinds of taxes, including income tax, from the gross revenues of a public
utility is firmly entrenched in American jurisprudence. It contends that the Public Service Act (Commonwealth Act No.
146) was patterned after Act 2306 of the Philippine Commission, which, in turn, was borrowed from American state
public utility laws such as the New Jersey Public Utility Act. Hence, it maintains that American jurisprudence on the
inclusion of income taxes as a lawful charge to operating expenses should be controlling. It cites the rule on
statutory construction that a statute adopted from a foreign country will be presumed to be adopted with the
construction placed upon it by the courts of that country before its adoption. 5

We are not persuaded. American decisions and authorities are not per se controlling in this jurisdiction. At best, they
are persuasive for no court holds a patent on correct decisions. Our laws must be construed in accordance with the
intention of our own lawmakers and such intent may be deduced from the language of each law and the context of
other local legislation related thereto. More importantly, they must be construed to serve our own public interest
which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct and
different from others.

Rate regulation calls for a careful consideration of the totality of facts and circumstances material to each application
for an upward rate revision. Rate regulators should strain to strike a balance between the clashing interests of the
public utility and the consuming public and the balance must assure a reasonable rate of return to public utilities
without being unreasonable to the consuming public. What is reasonable or unreasonable depends on a calculus of
changing circumstances that ebb and flow with time. Yesterday cannot govern today, no more than today can
determine tomorrow.

Prescinding from these premises, we reject MERALCO's insistence that the non-inclusion of income tax payments
as a legitimate operating expense will deny public utilities a fair return of their investment. This stubborn stance is
belied by the report submitted by the COA on the audit conducted on MERALCO's books of accounts and the
findings of the ERB.6

Upon the instructions of the ERB, the COA conducted an audit of the operations of MERALCO covering the period
from February 1, 1994 to January 31, 1995, or the period immediately after the implementation of the provisional
rate increase.7 Hence, amounts culled by the COA from its examination of the books of MERALCO already included
the provisional rate increase of P0.184 granted by the ERB.

From the figures submitted by the COA, the ERB was able to determine that MERALCO derived excess
revenueduring the test year in the amount of P2,448,378,000.8 This means that during the test year, and after the
rates were increased by P0.184, MERALCO earned P2,448,378,000 or 8.15% more than the amount it should have
earned at a 12% rate of return on rate base. Accordingly, based on this amount of excess revenue, the ERB
determined that the provisional rate granted by it to MERALCO was P0.167 per kwh more than the amount
MERALCO ought to charge its customers to obtain the prescribed 12% rate of return on rate base. Thus, the ERB
correspondingly lowered the provisional increase by P0.167 per kwh and ordered MERALCO to increase its rates at
a reduced amount of P0.017 per kwh, computed as follows:9

At appraised value
Total Invested Capital Entitled P 30,059,614,00010
to Return
12% return thereon P 3,607,154,000
Add: Total Operating expenses P 38,260,420,00011
for Rate Determination

Purposes P 41,867,573,000

Computed Revenue
Actual Revenue P 44,315,951,000
Excess Revenue P 2,448,378,000
Percent of Excess Revenue to 8.15%
Invested Capital
Authorized Rate of Return 12.00%
Actual Rate of Return 20.15%
Total kwh sold 14,640,094,000
Ratio of Excess Revenue to
Total kwh Sold P 0.167

In fact, even if MERALCO's income tax liability would be included as an operating expense, MERALCO would still
enjoy excess revenue of P312,738,000.00 or 1.04% above the authorized rate of return of 12%. Based on its audit,
the COA determined that the provision for income tax liability of MERALCO amounted to P2,135,639,000.00. 12 Thus,
even if such amount of income tax liability would be included as operating expense,the amount of excess revenue
earned by MERALCO during the test year would be more than sufficient to cover the additional income tax
expense. Thus:

At appraised
value
 Total Invested Capital Entitled to Return P 30,059,614,000
12% return thereon P 3,607,154,000
Add: Total Operating expenses for Rate P
Determination Purposes 40,396,059,00013
Computed Revenue P 44,003,213,000
Actual Revenue P 44,315,951,000
Excess Revenue P 312,738,000
Percent of Excess Revenue to Invested 1.04%
Capital
Authorized Rate of Return 12.00%
Actual Rate of Return 13.04%

It is crystal clear, therefore, that even if income tax is to be included as an operating expense and hence,
recoverable from the consuming public, MERALCO would still enjoy a rate of return that is above the authorized rate
of 12%. Public utilities cannot be allowed to overcharge at the expense of the public and worse, they cannot
complain that they are not overcharging enough.

Be that as it may, MERALCO contends that considering income tax payments of public utilities constitute one-third
of their net income, public utilities will effectively get, not the 12% rate of return on rate base allowed them, but only
about 8%.14 Again, we are not persuaded.

The foregoing argument assumes that the 12% return allowed to public utilities is equivalent to its taxable
incomewhich will be subject to income tax. The 12% rate of return is computed only for the purpose of fixing the
allowable rates to be charged by a public utility and is in no way determinative of the income subject to income tax
of the public utility. The computation of a corporation's income tax liability is an altogether different matter, with the
corporation's taxable income derived by taking into account the corporation's gross revenues less allowable
deductions.15

At any rate, even on the assumption that in the test year involved (February 1, 1994 to January 31, 1995),
MERALCO's computed revenue of P 41,867,573,000 or the amount that it is allowed to earn based on a 12% rate of
return is its taxable income, after payment of its income tax liability of P2,135,639,000.00, MERALCO would still
obtain an 11.38% rate of return or a return that is well within the 12% rate allowed to public utilities.16

MERALCO also contends that even the successor of the ERB or the ERC created under the Electric Power Industry
Reform Act of 2001 (EPIRA)17 "adheres to the principle that income tax is part of operating expense." 18To bolster its
argument, MERALCO cites Article 36 of the EPIRA which charges the ERC with the responsibility of unbundling the
rates of the National Power Corporation (NPC) and each distribution utility coming within the coverage of the
law.19 MERALCO alleges that pursuant to said provision, the ERC issued a set of Uniform Rate Filing Requirements
(UFR) containing guidelines to be followed with respect to rate unbundling applications to be filed. MERALCO
asserts that under the UFR, the enumeration of the expenses which are to be recovered through the rates, and
which are to be separated or allocated for the purpose of unbundling of these rates include income tax expenses.

Under Section 36 of the EPIRA, the NPC and every distribution facility covered by the law is mandated to unbundle,
segregate or itemize its rates according to the various sectors of the electric power industry identified in the law,
namely: generation, transmission, distribution and supply. 20 The law further directs the ERC to regulate and facilitate
the unbundling of rates prescribed by Section 36. Thus, on October 30, 2001, the ERC issued guidelines prescribing
the uniform rate filing requirements to be followed by distribution facilities for the purposes of unbundling rates. 21

A proper appreciation of the UFR shows that it simply specifies a uniform accounting system to be complied with by
a distribution facility when filing an application for revised rates under the EPIRA. As the EPIRA requires the
unbundling or segregation of rates according to the different sectors of the electric power industry, the UFR seeks to
facilitate this process by properly identifying the accounts or information required for proper evaluation by the ERB.
Thus, the introductory statements of the UFR provide:
 These uniform rate filing requirements are intended to promote consistency and completeness in the rate
filings required by Republic Act No. 9136 (RA 9136), Section 36. To that end, the filing requirements only
specify minimum form and content. A rate application in all its aspects continues to be subject to subsequent
Commission review and deliberation.22

At the onset, it is clear that the UFR does not seek to determine which accounting method will be used by the ERC
for determination of rate base or the items of expenses that may be recovered by a public utility from its
customers. The UFR only seeks to prescribe a uniform system or format to standardize or facilitate the process of
unbundling of rates mandated by the EPIRA. At best, the UFR prescribes the set of raw data or figures to be
disclosed by a distribution facility that the ERC will need to determine the authorized rates that a distribution facility
may charge. The UFR does not, in any way, determine the manner by which the set of data or figures indicated in
the rate application will be evaluated by the ERC for rate determination purposes.

II

MERALCO also challenges the use of the "net average investment method" or the "number of months use method"
on the ground that MERALCO and the Public Service Commission (PSC) have been consistently applying the
"average investment method" or "simple average", which it alleged was also affirmed by this Court in the case
of MERALCO v. PSC23 and Republic v. Medina.24

It is true that in MERALCO v. PSC,25 the issue of the proper valuation method to be used in determining the value of
MERALCO's utility plants for rate fixing purposes was brought to fore. In the said case, MERALCO applied the
"average investment method" or "simple average" by obtaining the average value of the utility plants, using its
values at the beginning and at the end of the test year. In contrast, the General Auditing Office used the "appraisal
method" which fixes the value of the utility plants by ascertaining the cost of production per kilowatt and multiplying
the same by the total capacity of said plants, less the corresponding depreciation. 26 In upholding the "average
investment method" used by MERALCO, this Court adopted the findings of the PSC for being "by and large,
supported by the records of the case."27 This Court did not make an independent assessment of the validity or
applicability of the average investment method but simply did not disturb the findings of the PSC for being supported
by substantial evidence. To conclude that the said decision "affirmed" the use of the "average investment method"
thereby implying that the said method is the only method to be applied in all instances, is a strained reading of the
decision.

In fact, in the case of Republic v. Medina, 28 also cited by MERALCO to have affirmed the use of the "average
investment method", this Court ruled:

The decided weight of authority, however, is to the effect that property valuation is not to be solved by
formula but depends upon the particular circumstances and relevant facts affecting each utility as to what
constitutes a just rate base and what would be a fair return, just to both the utility and the public. 29

Further, Mr. Justice Castro in his concurring opinion in the same case elucidated:

A regulatory commission's field of inquiry, however, is not confined to the computation of the cost of service
or capital nor to a mere prognostication of the future behavior of the money and capital markets. It must also
balance investor and consumer expectations in such a way that broad requirements of public interest may
be meaningfully realized. It would hence appear in keeping with its public duty if a regulatory body is allowed
wide discretion in the choice of methods rationally related to the achievement of this end.30

Thus, the rule then as it is now, is that rate regulating authorities are not hidebound to use any single formula or
combination of formulas for property valuation purposes because the rate-making process involves the balancing of
investor and consumer interests which takes into account various factors that may be unique or peculiar to a
particular rate revision application.

We again stress the long established doctrine that findings of administrative or regulatory agencies on matters which
are within their technical area of expertise are generally accorded not only respect but at times even finality if such
findings and conclusions are supported by substantial evidence. 31 Rate fixing calls for a technical examination and a
specialized review of specific details which the courts are ill-equipped to enter, hence, such matters are primarily
entrusted to the administrative or regulating authority. 32

Thus, this Court finds no reversible error on the part of the COA and the ERB in adopting the "net average
investment method" or the "number of months use method" for property valuation purposes in the cases at bar.

III

MERALCO also rants against the retroactive application of the rate adjustment ordered by the ERB and affirmed by
this Court. In its decision, the ERB, after authorizing MERALCO to adopt a rate adjustment in the amount of P0.017
per kwh, directed MERALCO to refund or credit to its customers' future consumption the excess average amount of
P0.167 per kwh from its billing cycles beginning February 1994 33 until its billing cycles beginning February 1998.34 In
the decision appealed from, this Court likewise ordered that the refund in the average amount of P0.167 per kwh be
made to retroact from MERALCO's billing cycles beginning February 1994.

MERALCO contends that the refund cannot be given retroactive effect as the figures determined by the ERB only
apply to the test year or the period subject of the COA Audit, i.e., February 1, 1994 to January 31, 1995. It reasoned
that the amounts used to determine the proper rates to be charged by MERALCO would vary from year to year and
thus the computation of the excess average charge of P0.167 would hold true only for the test year. Thus,
MERALCO argues that if a refund of P0.167 would be uniformly applied to its billing cycles beginning 1994, with
respect to periods after January 31, 1995, there will be instances wherein its operating revenues would fall below
the 12% authorized rate of return. MERALCO therefore suggests that the dispositive portion be modified and order
that "the refund applicable to the periods after January 31, 1995 is to be computed on the basis of the excess
collection in proportion to the excess over the 12% return." 35

The purpose of the audit procedures conducted in a rate application proceeding is to determine whether the rate
applied for will generate a reasonable return for the public utility, which, in accordance with settled laws and
jurisprudence, is 12% on rate base or the present value of the assets used in the operations of a public utility. For
audit purposes, however, there is a need to obtain a sample set of data-- usually derived from figures within a
designated period of time-- to determine the amount of returns obtained by a public utility during such period. In the
cases at bar, the COA conducted an audit for the test year beginning February 1, 1994 and ending January 31,
1995 or a 12-month period immediately after the order of the ERB granting a provisional increase in the amount of
P0.184 per kwh was issued. Thus, the ultimate issue resolved by the COA when it conducted its audit was whether
the provisional increase granted by the ERB generated an amount of return well within the rates authorized by law.
As stated earlier, based on the findings of the ERB, with the increase of P0.184 per kwh, MERALCO obtained a rate
of return which was 8.15% more than the authorized rate of return of 12%. 36 Thus, a refund in the amount of P0.167
was determined and ordered by ERB.

The essence of the use of a "test year" for auditing purposes is to obtain a sample or representative set of figures to
enable the examining authority to arrive at a conclusion or finding based on the gathered data. The use of a "test
year" does not mean that the information and conclusions so derived would only be correct for that year and would
be incorrect on the succeeding years. The use of a "test year" assumes that within a reasonable period after such
test year, figures used to determine the amount of return would only vary slightly from the figures culled during the
test year such that the impact on the utility's rate of return would not be very significant. Thus, in the event that there
is a substantial change in circumstances significantly affecting the variable amounts that would determine the
reasonableness of a return, an event which would normally occur after a certain period of time has elapsed, the
public utility may subsequently apply for a rate revision.

We agree with the Solicitor General that following MERALCO's reasoning that the figures culled from a test year
would only be relevant during such year, there would be a need for public utilities to apply for a rate
adjustmentevery year and perform an audit examination on a public utility's books of accounts every year as the
amount of a utility's revenue may fall above or below the authorized rates at any given year. Needless to say, the
trajectory of MERALCO's arguments will lead to an absurdity.

From the time the order granting a provisional increase was issued by the ERB, nowhere in the records does it
appear that the subsequent refund of P0.167 per kwh ordered by the ERB was ever implemented or executed by
MERALCO.37 Accordingly, from January 28, 1994 MERALCO imposed on its customers a charge that is P0.167 in
excess of the proper amount. In fact, any application for rate adjustment that may have been applied for and/or
granted to MERALCO during the intervening period would have to be reckoned from rates increased by P0.184 per
kwh as these were the rates prevailing at the time any application for rate adjustment was made by MERALCO.

While we agree that the amounts used to determine the utility's rate of return would vary from year to year, we are
unable to subscribe to the view that the refund applicable to the periods after January 31, 1995 should be computed
on the basis of the excess collection in proportion to the excess over the 12% return. MERALCO's contention that
the refund for periods after January 31, 1995 should be computed on the basis of revenue of each year in excess of
the 12% authorized rate of return calls for a year-by-year computation of MERALCO's revenues and assets which
would be contrary to the essence of an audit examination of a public utility based on a test year. To grant
MERALCO's prayer would, in effect, allow MERALCO the benefit of a year-by-year adjustment of rates not normally
enjoyed by any other public utility required to adopt a subsequent rate modification. Indeed, had the ERB ordered
an increase in the provisional rates it previously granted, said increase in rates would apply retroactively and would
not have varied from year to year, depending on the variable amounts used to determine the authorized rates that
may be charged by MERALCO. We find no significant circumstance prevailing in the cases at bar that would justify
the application of a yearly adjustment as requested by MERALCO.

WHEREFORE, in view of the foregoing, the petitioner's Motion for Reconsideration is DENIED WITH FINALITY.

SO ORDERED.

Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

Panganiban, J., please see separate opinion.

Separate Opinions

PANGANIBAN, J.:

After perusing the respondent's Motion for Reconsideration, the Comment thereon by the Office of the Solicitor
General (OSG) and the other pleadings filed by the parties, I believe there are still lingering questions that need to
be answered or clarified before the Motion for Reconsideration should be resolved. Some of the more important
questions are the following:

Effect of ERC's
Self-Reversal

First, this case reached this Court because the Energy Regulatory Board (ERB), now known as the Energy
Regulatory Commission (ERC), appealed to us the Decision of the Court of Appeals (CA), which upheld Meralco. In
its Comment to Meralco's Motion for Reconsideration, however, the OSG — as counsel for ERC — informed this
Court that ERC has reversed its position and now believes that "income taxes . . . are reasonable costs that may be
recoverable from the consuming public." In the words of the ponencia, ERC "agrees with Meralco that to disallow
public utilities from recovering its income tax payments will effectively lower the return on rate base enjoyed by a
public utility to 8%."

1. By reversing itself, is the ERC effectively abandoning its appeal before this Court? If so, is it still proper for
this Court to uphold the old ERB Decision? Be it remembered that our own Decision is anchored on the
theory that ERB should be affirmed, because it is the knowledgeable and specialized government agency
tasked with electric rate determination, and thus its findings and opinions — unless obviously faulty — merit
full faith and credit.

2. Is the OSG, as counsel for the ERC and the government, authorized to argue against its own clients'
position and thereby leave them without any lawyer?

Effects of New
EPIRA Law
Second, in its Comment, OSG informs us that a new law, RA 9136 — the Electric Power Industry Reform Act
(EPIRA) — was enacted on June 16, 2002. This law allegedly authorizes ERC to determine rates that will "allow the
recovery of a just and reasonable return of rate base (RORB) to enable the entity to operate viably." On this basis,
ERC opines that actual income taxes paid should now be deemed "reasonable costs" of operating a public utility.

1. Does this mean that effective June 16, 2002, ERC may allow the deduction of income taxes from
operating expenses? Does this render our Decision obsolete?

Our Decision Allegedly

Reduce Earnings to Only 8%

Third, citing the report of the Commission on Audit (COA), the OSG originally opined that MERALCO — after the
infusion of the provisional rate increase of 18.4 centavos — would still earn 13% RORB if income taxes are not
treated as operating expenses, and 20% if they are deducted as operating expenses.

1. If this is so, why is Meralco still complaining that the old ERB Decision, which this Court is affirming, bars
it from earning the maximum allowable profit of 12%? How accurate are the OSG and COA computations?
Or, is Meralco just misleading the Court?

2. In any event, despite the COA figures, the OSG contends that — at least theoretically — Meralco's profit
would be reduced by our Decision to a maximum of only 8% RORB, instead of the allowable 12%. At the
same time, it justifies the 8% RORB by arguing that the World Bank and the Asian Development Bank
consider a public utility of 8% RORB still viable (p. 42 of the OSG Comment). Which is which?

Special Privilege
to Meralco

Fourth, in its Comment, the OSG argues that other public utilities are not allowed to deduct income taxes as
operating expenses. Why then should Meralco be given this special privilege, it rhetorically asks?

1. Is this true? If so, why has the ERC changed its position? Why is it now allowing Meralco to deduct
income tax payments as "reasonable costs" of operation?

Oral Argument
Is the Proper Thing

The foregoing are the more important questions I posed when I asked the Third Division to refer this case to the
Court en banc and to conduct oral arguments on the Motion for Reconsideration of Meralco. These questions were
not fully taken up by the pleadings of the parties. Thus, it would be pretentious for me to render an opinion on them.
On the other hand, I believe that a decision that does not take up these questions would be incomplete.

Hearing the parties on Oral Argument before the entire Court or even by just the Third Division, prior to resolving
with finality the motion for reconsideration on a very important matter such as the present case is not unusual. In
fact, with due respect, I believe that this is the proper thing to do.

After all, very recently in PLDT v. City of Davao (GR No. 143863, March 27, 1993), the Court en banc conducted an
Oral Argument on the Motion for Reconsideration challenging the unanimous Decision of the Second Division. That
case involved the legality of whether a local government unit (LGU) like the City of Davao may impose local taxes
on the Philippine Long Distance Telephone Company. The amount involved there was only about P4 million. On the
other hand, the present case involves the refund of about P2.5 billion per year starting 1994, or about P20 billion up
to the year 2003.

Apart from the monetary consideration, I believe the issues raised — including the foregoing questions — are
important enough to merit a hearing also. May I stress that this case will affect not only Meralco and its customers
but all electric utilities and all their customers all over the Philippines, which means this case will affect all the people
of this country.
Finally, it is interesting to note that the unanimous Second Division Decision in the above cited PLDT case was
upheld by the banc with some dissents led by the herein ponente, Mr. Justice Reynato S. Puno himself, but only
after a full hearing by the full Court.

WHEREFORE, I regret I cannot cast my vote in favor of (or even against) the ponencia until and unless an Oral
Argument is first called, preferably by the full Court, to clarify the above questions.

G.R. No. L-13067 December 29, 1959

THE COMMISSIONER OF CUSTOMS, petitioner,

vs.
CALTEX (PHILIPPINE) INC., ET AL., respondents.

Assistant Solicitor General Jose P. Alejandro and Solicitor Sumilang V. Bernardo for petitioner.
Ross, Selph, Carrascoso and Janda and Laurel Law Offices for respondents Caltex (Philippines) Inc.

BAUTISTA ANGELO, J.:

On June 20, 1953, Caltex (Philippines) Inc. was granted by the Secretary of Agriculture and Natural Resources a
petroleum refining concession with the right to establish and operate a petroleum refinery in the municipalities of
Bauan and Batangas, province of Batbgas. The concession contains the following proviso: "the Government hereby
also grants all the rights of a Petroleum Refining Concession and the Concessionaire hereby accepts all the
obligations and said Petroleum Refining Concession in accordance with the provision of Republic Act No. 387 as
approved 18 June 1949, the provisions of which are made a part of this deed of Concession." The corporation
constructed a petroleum refinery in the municipality of Bauan, Batbgas, which was completed and commenced
operation sometime in October, 1954, using as basic material crude oil imported from abroad.

On May 11, July 28, and September 11, 1954, the corporation filed with the Collector of Customs a claim for refund
of the amounts of P9,924.31, P3,679.78 and P1,300.24, representing customs duties paid on imported petroleum
products consumed in connection with its refined project at Bauan, Batangas, during the period from June 20, 1953
to March 15, 1954; from April 1, 1954 to June 30, 1954, and from March 1, 1954 to March 31, 1954, respectively, on
the ground that the same were exempt from customs duties under Article 103 of Republic Act No. 387. On April 25,
1955, the Collector of Customs denied said claim for refund and, on appeal, the Commissioner of Customs affirmed
the ruling on August 21, 1955. On September 30, 1955, the corporation filed a petition for review with the Court of
tax Appeals which, after hearing, rendered decision the dispositive part of which reads:

Wherefore, the decision of the respondent Commissioner of Customs of August 21, 1955, appealed from,
should be, as it is hereby modified.

Respondent is hereby ordered to refund to the petitioner, Caltex (Philippines) Inc. the amount of P10,444.82,
representing customs duty on the petroleum products imported by it during the period from June 24, 1953 to
May 29, 1954, for its own use in the construction of its Batangas refinery, the collection and refusal to refund
the same being in contravention of Article 103 of Republic Act No. 387, without special pronouncement as to
costs.

The Commissioner of Customs interposed the present petition for review.

Respondent company claims exemption from payment of customs duties on its importation of petroleum products
consumed by it during the construction of its refinery under Article 103 of Republic Act No. 387, which provides:

ART. 103. Customs duties. — During the first five years following the granting of any concession, he
concessionaire may import free of customs duty, all equipment, machinery, material, instruments, supplies
and accessories.
 No exemption shall be allowed on goods imported by the concessionaire for his personal use or that of any
other; nor for sale or for re-export and if any goods on which exemption has been allowed be thus used or
disposed of, the concessionaire is obliged to make a report to the Secretary of Agriculture and Natural
Resources to that effect and to pay such import duty as is due.

It would appear that under the above provision any concessionaire may import free of customs duty "all equipment,
machinery, material, instruments, supplies and accessories" during the first five years following the granting of the
concession. Here it cannot be disputed that the petroleum products imported by respondent for its use during the
construction of the refinery such as gasoline and oil furnished its drivers during the construction job come within the
import of the words material or supplies, for it has been held that gasoline and oil used by drivers in a construction
job fall under the category of supplies (West vs. Detroit Fidelity and Surety Co., 225 N.W. 673, 678, 118 Neb. 544
cited on page 790 Vol. 40. Words and Phrases). To the same effect is the opinion rendered by the Secretary of
Justice on June 28, 1954 upon the request of respondent who held that its importation of crude oil for the use of its
refinery can be considered as "materials" within the purview of the exemption statute. It is, therefore, clear that by
express provision of the law the petroleum products imported by respondent for the use of its cars during the
construction of its refinery are exempt from the customs duties imposed by petitioner.

It is, however, contended that, regardless of the above interpretation, the exemption cause contained in the law
cannot apply to the herein corporation for the reason that the refinery of the letter is being operated on imported
crude petroleum and not on crude petroleum produced in the Philippines, contrary, it is claimed, to the very objective
of Republic Act No. 387 which is "to promote and encourage the exploration, development, production and utilization
of the petroleum resources of the Philippines, as much as possible, by private enterprises looking toward the
establishment of a wholly intergrated domestic industry with an equitable division of benefits between such private
enterprise and the Government, giving likewise a share of such benefits to the private land owners." And to
strengthen his argument, petitioner adds the following comment: "It cannot be denied that refining concessionaires
cannot help in the utilization of our petroleum resources unless they refine locally produced crude petroleum
products. To exempt respondent Caltex (Philippines) Inc. from payment of Customs duties on its importation of
equipment, machinery, material, instruments, supplies, and accessories will not only result in the loss of revenues to
the government, nut will also defeat the purpose of the law to develop, exploit and utilize the petroleum resources of
the Philippines." In other words, the claim of petitioner is that since respondent does not use in its refinery locally
produced crude petroleum but it operate on imported crude petroleum products, it cannot claim the benefit of
exemption granted by Republic Act 387. lawphi1.net

Many reasons may be advanced to show that such is not the real intent of law in granting exemption to petroleum
concessionaires in the Philippines. To begin with, we may cite the provision of Article 79 of said Act which requires
any established refinery "to refine crude petroleum produced in the Philippines in preference over any imported
crude petroleum", which means that importance crude petroleum may be allowed as long as no crude petroleum is
produced in the Philippines, and here it is admitted that there is no commercial production of crude petroleum in the
Philippines such that respondent might be compelled for sometime to operate on imported petroleum. In the second
place, in the concession granted to respondent, there is a proviso to the effect that the concessionaire shall not be
required against its will to refine crude petroleum from foreign sources, which can only mean that it may also make
use of petroleum from foreign sources if it so desires. In the third place, when the Petroleum Act was passed and
the concession granted to respondent under its provision, it was well known that there was then no Philippine crude
petroleum available for the use of any refinery in the Philippines which makes it obvious that Congress could not
have intended that before the exemption may be extended to a concessionaire the latter should only refine crude
petroleum produced in the Philippines, for that would defeat the very objective of the Act. From the practical and
legal point of view, therefore, the interpretation that petitioner desires to give now to the law in an effort to justify its
denial of the claim for exemption by respondent is unfair and cannot be sustained.

But petitioner insists that allow the operation of oil refineries in the Philippines on imported crude oil products would
be contrary to the real objective of the Act which is to promote and encourage the exploration, development,
production and utilization of the petroleum resources of the Philippines, and so that should not be countenanced.
Again, this contention is untenable, for it overlooks the fact that with the establishment here of oil refineries those
interested in oil exploration and venture would receive greater impetus and encouragement because of the thought
that if they strike oil of commercial value they would have an already established refinery that would be ready to
absorb all the crude petroleum they may produce out of their exploratory efforts. They would know then that in that
eventuality they would not need to establish their own refinery, which requires a huge capital, to process their own
produced raw material. In this respect, we cannot but take notice of the following interesting observation of the Court
of Tax Appeals, which we quote with approval:

We could concede that as a petroleum refining concessionaire, the petitioner herein is not contributing
directly to the exploration and exploitation of our petroleum resources. We cannot admit, however, that as
such concessionaire, the petitioner is undermining the development of our petroleum resources. Indirectly,
the petitioner is contributing immeasurably to the exploration of our hidden and undeveloped oil resources.
For one thing, the establishment of a petroleum refinery in the Philippines, like the one operated by
petitioner, has given the necessary incentive to those already engaged or who intend to engage in drilling oil
wells in the Philippines as the Philippines Oil Development Co. and many others. Filipino capitalists who are
by nature conservative and timid, would be encouraged to invest and keep on investing their capital in the
venture with the assurance that should they finally strike oil of commercial value have ready at their disposal
a well established, local operated refinery costing over P50,000,000.00 manned by experts. For their
convenience, there will be need for them to refine their crude oils abroad not provide for themselves a
refinery that would mean a drainage of capital and several years to construct. By way of analogy, the
Philippine Charity Sweepstakes Office is definitely not engaged in breeding houses. However, it cannot be
denied that its creation has given much encouragement to local horse fanciers, race horse owners and
horse traders to breed good stock, what with the tempting prizes that are being offered to winners in
Sweepstakes races and the exorbitant price that a potential Sweepstakes winner could command in the
horse market. Moreover it would be most unreasonable as respondent's counsel seems to expect, for
petitioner to refine locally produced crude oil before granting it the benefit of exemption from customs duty
when, as everybody knows, we have not yet discovered crude oils of commercial value in this country.

The Director of Mines who is authorized under Republic Act No. 387, to administer and enforce and enforce
said law, in his letter of May 9, 1953, Exhibit B, to the Secretary of Agriculture and Natural Resources
recommending the approval of petitioner's application for a Petroleum Refining Concession, made the
following observations:

The establishment of a petroleum refinery in the Philippines will undoubtedly contribute much to the
economic welfare of the nation as it will be an additional source of Taxes for the Government, afford more
opportunities for employment of our people, and may reduce the cost of petroleum products which are
needs and therefore essential in the progressive industrialization of our economy. The operation of such a
refinery may also induce the intensification of the search for oil in the Philippines, where oil is recognized to
exist, as then there will be a refinery available to turn into manufactured products the crude petroleums that
may be found and produced locally. It may also be mentioned that the investment here of P60,000,000 for
such a refinery will constitute another evidence of the confidence of foreign investors in the soundness of the
Philippine peso and the existence of a favorable climate for foreign investments.

Note this observation of the Director of Mines: "The operation of such a refinery may also induce the intensification
of the search for oil in the Philippines, where oil is recognized to exist, as then there will be a refinery available to
turn into manufactured products the crude petroleums that may be found and produced locally." No greater
encouragement can be found to bolster up the exploration and development of the petroleum resources of the
Philippines than this comment of our technical authority on the matter.

It is finally contended that Republic Act No. 901 which grants general tax exemption to new and necessary
industries has the effect of impliedly repealing Section 103 of the Petroleum Act insofar as new industries are
concerned and since the refinery established by respondent may be considered a new industry, may not now claim
the exemption in question. To meet this point, suffice it to state that Section 1 of Republic Act No. 901 expressly
provides that "the tax exemption provided for in this Act shall no include any company or person engaged in the
processing of oil, gasoline, lubricant and other similar fuels and by-products", which shows that respondent's
refinery cannot be considered a new industry under said Act. In fact, respondent never requested any exemption
from taxation under Republic Act No. 901, nor has it claimed to be new and necessary industry within its scope.

We find, therefore, untenable the errors attributed by petitioner to the Court of Tax Appeals.

Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.

Paras, C.J., Padilla, Montemayor, Labrador, Conception, Endencia, Barrera and Gutierrez David, JJ., concur.