FIRST DIVISION

[G.R. No. 47800. December 2, 1940.]

MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.

Maximo Calalang in his own behalf.

Solicitor General Ozaeta and Assistant Solicitor General Amparo for respondents Williams, Fragante and Bayan

City Fiscal Mabanag for the other respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT No. 648; DELEGATION OF LEGISLATIVE

POWER; AUTHORITY OF DIRECTOR OF PUBLIC WORKS AND SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS TO
PROMULGATE RULES AND REGULATIONS. — The provisions of section 1 of Commonwealth Act No. 648 do not confer
legislative power upon the Director of Public Works and the Secretary of Public Works and Communications. The authority
therein conferred upon them and under which they promulgated the rules and regulations now complained of is not to
determine what public policy demands but merely to carry out the legislative policy laid down by the National Assembly in
said Act, to wit, "to promote safe transit upon, and avoid obstructions on, roads and streets designated as national roads by
acts of the National Assembly or by executive orders of the President of the Philippines" and to close them temporarily to any
or all classes of traffic "whenever the condition of the road or the traffic thereon makes such action necessary or advisable in
the public convenience and interest." The delegated power, if at all, therefore, is not the determination of what the law shall be,
but merely the ascertainment of the facts and circumstances upon which the application of said law is to be predicated. To
promulgate rules and regulations on the use of national roads and to determine when and how long a national road should be
closed to traffic, in view of the condition of the road or the traffic thereon and the requirements of public convenience and
interest, is an administrative function which cannot be directly discharged by the National Assembly. It must depend on the
discretion of some other government official to whom is confided the duty of determining whether the proper occasion exists
for executing the law. But it cannot be said that the exercise of such discretion is the making of the law.

2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL AUTHORITY. — Commonwealth Act No. 548 was passed by
the National Assembly in the exercise of the paramount police power of the state. Said Act, by virtue of which the rules and
regulations complained of were promulgated, aims to promote safe transit upon and avoid obstructions on national roads, in
the interest and convenience of the public. In enacting said law, therefore, the National Assembly was prompted by
considerations of public convenience and welfare. It was inspired by a desire to relieve congestion of traffic, which is, to say
the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order
to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. Persons
and property may be subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and
prosperity of the state (U.S. v. Gomer Jesus, 31 Phil., 218). To this fundamental aim of our Government the rights of the
individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over
authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because then the
individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind through
education and, personal discipline, so that there may be established the resultant equilibrium, which means peace and order
and happiness for all. The moment greater authority is conferred upon the government, logically so much is withdrawn from
the residuum of liberty which resides in the people. The paradox lies in the fact that the apparent curtailment of liberty is
precisely the very means of insuring its preservation.

3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the
people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of
society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the
exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse
units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our
social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health,
comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number."

DECISION

LAUREL, J.:

Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought before this court this petition for a
writ of prohibition against the respondents, A. D. Williams, as Chairman of the National Traffic Commission; Vicente Fragante,
as Director of Public Works; Sergio Bayan, as Acting Secretary of Public Works and Communications; Eulogio Rodriguez, as
Mayor of the City of Manila; and Juan Dominguez, as Acting Chief of Police of Manila.

It is alleged in the petition that the National Traffic Commission, in its resolution of July 17, 1940, resolved to recommend to
the Director of Public Works and to the Secretary of Public Works and Communications that animal-drawn vehicles be
prohibited from passing along Rosario Street extending from Plaza Calderon de la Barca to Dasmariñas Street, from 7:30 a.m.
to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and along Rizal Avenue extending from the railroad crossing at Antipolo Street
to Echague Street, from 7 a.m. to 11 p.m., from a period of one year from the date of the opening of the Colgante Bridge to
traffic; that the Chairman of the National Traffic Commission, on July 18, 1940 recommended to the Director of Public Works
the adoption of the measure proposed in the resolution aforementioned, in pursuance of the provisions of Commonwealth Act
No. 548 which authorizes said Director of Public Works, with the approval of the Secretary of Public Works and
Communications, to promulgate rules and regulations to regulate and control the use of and traffic on national roads; that on
August 2, 1940, the Director of Public Works, in his first indorsement to the Secretary of Public Works and Communications,
recommended to the latter the approval of the recommendation made by the Chairman of the National Traffic Commission as
aforesaid, with the modification that the closing of Rizal Avenue to traffic to animal-drawn vehicles be limited to the portion
thereof extending from the railroad crossing at Antipolo Street to Azcarraga Street; that on August 10, 1940, the Secretary of
Public Works and Communications, in his second indorsement addressed to the Director of Public Works, approved the
recommendation of the latter that Rosario Street and Rizal Avenue be closed to traffic of animal-drawn vehicles, between the
points and during the hours as above indicated, for a period of one year from the date of the opening of the Colgante Bridge to
traffic; that the Mayor of Manila and the Acting Chief of Police of Manila have enforced and caused to be enforced the rules and
regulations thus adopted; that as a consequence of such enforcement, all animal-drawn vehicles are not allowed to pass and
pick up passengers in the places above-mentioned to the detriment not only of their owners but of the riding public as well.

It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of Public Works, with the approval of
the Secretary of Public Works and Communications, is authorized to promulgate rules and regulations for the regulation and
control of the use of and traffic on national roads and streets is unconstitutional because it constitutes an undue delegation of
legislative power. This contention is untenable. As was observed by this court in Rubi v. Provincial Board of Mindoro (39 Phil,
660, 700), "The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed
in a multitude of cases, namely: ’The true distinction therefore is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.’
(Cincinnati, W. & Z. R. Co. v. Comm’rs. Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief Justice Marshall in Wayman v.
Southard (10 Wheat., 1) may be committed by the Legislature to an executive department or official. The Legislature may
make decisions of executive departments or subordinate officials thereof, to whom it has committed the execution of certain
acts, final on questions of fact. (U.S. v. Kinkead, 248 Fed., 141.) The growing tendency in the decisions is to give prominence to
the ’necessity’ of the case."cralaw virtua1aw library

Section 1 of Commonwealth Act No. 548 reads as follows:jgc:chanrobles.com.ph

"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets designated as national roads by acts of
the National Assembly or by executive orders of the President of the Philippines, the Director of Public Works, with the
approval of the Secretary of Public Works and Communications, shall promulgate the necessary rules and regulations to
regulate and control the use of and traffic on such roads and streets. Such rules and regulations, with the approval of the
President, may contain provisions controlling or regulating the construction of buildings or other structures within a
reasonable distance from along the national roads. Such roads may be temporarily closed to any or all classes of traffic by the
Director of Public Works and his duly authorized representatives whenever the condition of the road or the traffic thereon
makes such action necessary or advisable in the public convenience and interest, or for a specified period, with the approval of
the Secretary of Public Works and Communications."cralaw virtua1aw library

The above provisions of law do not confer legislative power upon the Director of Public Works and the Secretary of Public
Works and Communications. The authority therein conferred upon them and under which they promulgated the rules and
regulations now complained of is not to determine what public policy demands but merely to carry out the legislative policy
laid down by the National Assembly in said Act, to wit, "to promote safe transit upon and avoid obstructions on, roads and
streets designated as national roads by acts of the National Assembly or by executive orders of the President of the
Philippines" and to close them temporarily to any or all classes of traffic "whenever the condition of the road or the traffic
makes such action necessary or advisable in the public convenience and interest." The delegated power, if at all, therefore, is
not the determination of what the law shall be, but merely the ascertainment of the facts and circumstances upon which the
application of said law is to be predicated. To promulgate rules and regulations on the use of national roads and to determine
when and how long a national road should be closed to traffic, in view of the condition of the road or the traffic thereon and
the requirements of public convenience and interest, is an administrative function which cannot be directly discharged by the
National Assembly. It must depend on the discretion of some other government official to whom is confided the duty of
determining whether the proper occasion exists for executing the law. But it cannot be said that the exercise of such discretion
is the making of the law. As was said in Locke’s Appeal (72 Pa. 491): "To assert that a law is less than a law, because it is made
to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public welfare whenever a law is
passed relating to a state of affairs not yet developed, or to things future and impossible to fully know." The proper distinction
the court said was this: "The Legislature cannot delegate its power to make the law; but it can make a law to delegate a power
to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this
would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which
cannot be known to the law-making power, and, must, therefore, be a subject of inquiry and determination outside of the halls
of legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)

In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, promulgated June 12, 1939, and in Pangasinan
Transportation v. The Public Service Commission, G.R. No. 47065, promulgated June 26, 1940, this Court had occasion to
observe that the principle of separation of powers has been made to adapt itself to the complexities of modern governments,
giving rise to the adoption, within certain limits, of the principle of "subordinate legislation," not only in the United States and
England but in practically all modern governments. Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulations, and the increased difficulty of administering the laws, the rigidity of
the theory of separation of governmental powers has, to a large extent, been relaxed by permitting the delegation of greater
powers by the legislative and vesting a larger amount of discretion in administrative and executive officials, not only in the
execution of the laws, but also in the promulgation of certain rules and regulations calculated to promote public interest.

The petitioner further contends that the rules and regulations promulgated by the respondents pursuant to the provisions of
Commonwealth Act No. 548 constitute an unlawful interference with legitimate business or trade and abridge the right to
personal liberty and freedom of locomotion. Commonwealth Act No. 548 was passed by the National Assembly in the exercise
of the paramount police power of the state.

Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to promote safe transit upon and
avoid obstructions on national roads, in the interest and convenience of the public. In enacting said law, therefore, the National
Assembly was prompted by considerations of public convenience and welfare. It was inspired by a desire to relieve congestion
of traffic. which is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of said
law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with
business and occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure the
general comfort, health, and prosperity of the state (U.S. v. Gomez Jesus, 31 Phil., 218). To this fundamental aim of our
Government the rights of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall into anarchy. Neither should authority be made to
prevail over liberty because then the individual will fall into slavery. The citizen should achieve the required balance of liberty
and authority in his mind through education and personal discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the residuum of liberty which resides in the people. The paradox lies in the
fact that the apparent curtailment of liberty is precisely the very means of insuring its preservation.

The scope of police power keeps expanding as civilization advances. As was said in the case of Dobbins v. Los Angeles (195 U.S.
223, 238; 49 L. ed. 169), "the right to exercise the police power is a continuing one, and a business lawful today may in the
future, because of the changed situation, the growth of population or other causes, become a menace to the public health and
welfare, and be required to yield to the public good." And in People v. Pomar (46 Phil., 440), it was observed that "advancing
civilization is bringing within the police power of the state today things which were not thought of as being within such power
yesterday. The development of civilization, the rapidly increasing population, the growth of public opinion, with an increasing
desire on the part of the masses and of the government to look after and care for the interests of the individuals of the state,
have brought within the police power many questions for regulation which formerly were not so considered."cralaw
virtua1aw library

The petitioner finally avers that the rules and regulations complained of infringe upon the constitutional precept regarding the
promotion of social justice to insure the well-being and economic security of all the people. The promotion of social justice,
however, is to be achieved not through a mistaken sympathy towards any given group. Social justice is "neither communism,
nor despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social and economic forces by
the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means
the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic
stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the
interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or
extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored
principle of salus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse
units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our
social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health,
comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number."cralaw virtua1aw library

In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs against the petitioner.
So ordered.

Avanceña, C.J., Imperial, Diaz. and Horrilleno. JJ. concur.

G.R. No. 77828 February 8, 1989

EASTERN SHIPPING LINES, INC. petitioner,

vs.
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION, SECRETARY OF LABOR AND EMPLOYMENT, HEARING
OFFICER CHERYL AMPIL and MA. LOURDES A. ZARAGOZA, respondents.

FELICIANO, J.:

This Petition for certiorari and Prohibition seeks to set aside the Decision dated 19 March 1987 of the public respondent
Philippine Overseas Employment Administration (POEA), in POEA Case No. L-86-01-026.

The pertinent facts follow:

Manuel Zaragoza had been an employee of petitioner Eastern Shipping Lines, Inc. ("Eastern") for several years, having served
as engineer on board several of Eastern's vessels since 1973. At the time of his death on 18 September 1983, Manuel Zaragoza
was in Kakogawa, Japan serving as Chief Engineer of the M/V Eastern Meteor,a vessel then owned by Freesia Shipping
Company S.A. and chartered by Eastern. A Death Certificate 1 issued by Dr. Masayuki Inoue of the Kakogawa Hospital stated
that Zaragoza's death had been caused by "myocardial infarction."

On 17 December 1985, Manuel Zaragoza's widow, private respondent Ma. Lourdes A. Zaragoza, filed with the public
respondent POEA a formal Complaint 2 (docketed as POEA Case No. L-86-01-026) against Eastern, after the latter allegedly had
refused to act favorably on the widow's claim for gratuity arising from the death of her husband. Mrs. Zaragoza alleged that the
M/V Eastern Meteor having been registered with the Ministerio de Hacienda y Tesoro of the Republic of Panama at the time of
her husband's death, she was entitled to receive from Eastern death benefits in the amount of P100,000.00 as provided under
Memorandum Circular No. 71 issued on 18 November 1981 by the former National Seamen Board. Moral damages or
P50,000.00 and attorney's fees were likewise sought by the widow.

In its Answer, 3 Eastern alleged, among other things, that no cause of ac ' petition existed against it as the company had already
paid Mrs. Zaragoza a cash benefit of P12,000.00 for the death of her husband and an amount of P5,000.00 for funeral expenses.
Eastern further denied having incurred any additional liability under NSB Memorandum Circular No. 71, alleging that "[the
M/V Eastern Meteor] had been then also considered a vessel of the Philippine registry." Eastern assailed the jurisdiction of the
POEA over the complaint, asserting that the company "is not engaged in overseas employment even as [it] admits that [its]
vessels are ocean-going vessels."

On 19 March 1987, public respondent POEA rendered a Decision4 requiring petitioner to pay to private respondent Mrs.
Zaragoza P88,000.00 as the unpaid balance of her deceased husband's death benefits, and dismissing the claim for moral
damages for want of jurisdiction.

From this judgment, Eastern came directly to this Court. We issued a Temporary Restraining Order on 8 April 1987. 5

A preliminary point was raised by the Solicitor General in his Comment 6 on the Petition, that Eastern had failed to exhaust
administrative remedies in this case i.e., that petitioner Company did not interpose an appeal with the National Labor
Relations Commission before coming to this Court on certiorari. Inasmuch, however, as the petition at bar raises questions
essentially legal in nature, we do not consider the same as having been prematurely filed with this Court. 7

We address first the issue of jurisdiction. Petitioner Company does not deny that Manuel Zaragoza was its employee at the
time of his death on 18 September 1983. Petitioner would contend, however, that the company had neither been nor acted as
an "overseas employer" of Manuel Zaragoza, and that the latter had never been its "overseas employee." Hence, petitioner
concludes, private respondent's claim for death benefits should have been filed with the Social Security System, not with the
POEA.

The argument does not persuade. Applicable here and petitioner admits this in its Petition is Executive Order No. 797
(promulgated 1 May 1982), which abolished the former National Seamen Board and created in its place the present Philippine
Overseas Employment Administration. Section 4 (a) of Executive Order No. 797 expressly provides that the POEA "shall
have original and exclusive jurisdiction over all cases, including money claims, involving employer-employee relations arising out
of or by virtue of any law or contract involving Filipino workers for overseas employment, including seamen. " This provision is
clarified substantially in the Rules and Regulations on Overseas Employment issued by the POEA, Section 1 (d), Rule 1, Book VI
of which provides that "claims for death, disability and other benefits arising out of [overseas] employment" fall within the
POEA's original and exclusive jurisdiction. The following definitions contained in Section 1, Rule II, Book I of said POEA Rules
and Regulations are also useful:

g. Contract Worker-means any person working or who has worked overseas under a valid employment contract
and shall include seamen.

xxx xxx xxx

x. Overseas Employment-means employment of a worker outside the Philippines, including employment on

board vessels plying international waters, covered by a valid employment contract.

xxx xxx xxx

(Emphasis supplied)

We note that the statute and the relevant regulations refer to employment of Filipino workers overseas, i.e., outside the
Philippines. The statute and regulations do not limit their coverage to non-Filipino employers. Filipinos working overseas
share the same risks and burdens whether their employers be Filipino or foreign.

Neither party disputes that Manuel Zaragoza, at the time of his death, was covered by an existing contract of employment with
Eastern and that the deceased was at that time employed as a seaman (Chief Engineer) on board the M/V Eastern
Meteor, which vessel-then chartered by Eastern-was engaged in plying ocean routes, outside Philippine waters and which, at
the time of Zaragoza's demise, was berthed in a foreign port (Japan). In addition, the record shows that Eastern submitted its
shipping articles to public respondent POEA for processing, formalization and approval, 8 apparently in recognition of POEA!s
regulatory authority over overseas employment under Executive Order No. 797. While not in itself conclusive proof of
employment by Eastern of people overseas, nevertheless, this latter circumstance strongly suggests that Eastern must have
regarded itself as engaged in such employment, otherwise, it would not have found it necessary or useful to submit its
shipping articles to the POEA. We hold that the complaint of private respondent widow of Manuel Zaragoza falls well within
the original and exclusive jurisdiction of public respondent POEA. 9

We come to the issue regarding the amount of death benefits for which Eastern may be held liable to private respondent. In
assessing such amount, the POEA relied upon Memorandum Circular No. 71 (effective 1 December 1981) issued by the now
defunct National Seamen Board (NSB):

SECTION D. COMPENSATION AND BENEFITS DURING THE, TERM OF THE CONTRACT.

1. In case of total and permanent disability or death of the seaman during the term of his contract, the company
II pay the ,seaman or his beneficial the amount of:

P100,000.00-for masters and Chief Engineers

75,000.00 - for other officers

50,000.00 - for ratings

over and above the benefits which are provided for abd are the liabilities of the Philippine government under the
Philippine laws. Provided that when the employment of a seaman is also covered by a collective bargaining
agreement or death/disability insurance which provides for higher benefits than those enumerated above, in
which case, the seaman or his heirs/beneficiaries may elect under what scheme he is they are claiming.
Recovery under one scheme is a bar to any farther recovery; except where there is a clear showing in the
collective bargaining agreement and/or death/disability insurance that benefits provided for in the collective
bargaining agreement and death/disability insurance are separate and distinct from the abovementioned
benefits. The exact amount of insurance that each seaman is covered under this contract are as stipulated in
Column J of Appendix 2 of this contract. In addition to the above, the expenses for hospitalization of the
seaman shall be borne by the employer.

2. In lieu of paragraph 1 above, the liability of [an] employer of a Philippine registered vessel (exceptforeign-
owned vessels bareboat-chartered to a Philippine shipping company) shall be governed by existing Philippine
Laws over and above the benefits granted [under] Philippine laws on social security and employees'
compensation benefits provided that the Philippine registered vessel and any vessel bareboat- chartered to a
Philippine Shipping Company shall be manned by full Filipino crews. (Emphasis and brackets supplied).

It is the argument of Eastern here that NSB Memorandum Circular No. 71 collides with the public law principle of non-
delegation of legislative power. Eastern also argues that assuming the validity of the Circular, its provisions (specifically
paragraph 1) do not cover Eastern.

These arguments again do not persuade. Concerning the alleged unconstitutionality of NSB Memorandum Circular No. 71,
Article 20 of the Labor Code before its repeal by Executive Order No. 797, provided in salient part:

Art. 20. National Seamen Board.-A National Seamen Board is hereby created which shall develop and
maintain a comprehensive program for Filipino seamen employed overseas. It shall have the power and duty:

xxx xxx xxx

2. To regulate and supervise the activities of agents or representatives of shipping companies in the hiring of
seamen for overseas employment; and secure the best possible terms of employment for contract seamen
workers and secure compliance therewith;

xxx xxx xxx.

(Emphasis supplied)

The question of validity of the delegation of quasi-legislative power in favor of NSB's successor, respondent POEA, embodied in
the article quoted above, was addressed and resolved in the affirmative by the Court in Eastern Shipping Lines, Inc. v. Philippine
Overseas Employment Administration, et al. 10 On the authority of this case, we hold that NSB Memorandum Circular No. 71 was
issued in a valid exercise by the NSB of its "power and duty ... [to] secure the best possible terms of employment for contract
seamen workers and [to] secure compliance therewith."

We consider next petitioner's argument that it is not covered by the provisions of NSB Memorandum Circular No. 71. Eastern
submitted in evidence Certificate of Philippine Register Nos. ICGD-78-0428 dated 28 December 1978 11and ICGD-84-0288
dated 7 August 1984 12 to show that this M/V Eastern Meteor was registered with the Philippine Coast Guard in 1978 and
again in 1984. Eastern further maintained that M/V Eastern Meteor had always been fully manned by a Philippine crew. The
record also shows, however, that this vessel was at the same time also registered in the Republic of Panama as evidenced by
the Patente Permanente de Navegacion Servicio Internacional Nos. 7708-77 (dated 31 March 1977) 13 and 770877-A (dated 27
February 1987). 14 Petitioner had in fact paid taxes to the Panamanian government in 1978, 1979 1981, 1982 and
1983, 15 presumably because the M/V Eastern Meteorwas during those years operating under a valid Panamanian navigation
license. It, therefore, appears that at the time of the death of Manuel Zaragoza, the Eastern Meteor was both foreign-owned and
foreign-registered on one hand and upon the other band, simultaneously registered in the Philippines. Interpreting Section D
of Memorandum Circular No. 71, it appears clear that paragraph 1 covers Philippine seamen working in foreign-registered
ships while paragraph 2 applies to Philippine seamen working on Philippine-registered vessels. The parenthetical phrase
"except foreign-owned vessels bareboat-chartered to a Philippine shipping company" in paragraph 2 precisely covers the
situation of the Eastern Meteor, that is, a foreign-owned vessel registered in a foreign country (Panama), with a second
registration in the Philippines; such a vessel is excepted from coverage by paragraph 2, and hence covered by paragraph 1
instead. If the MN Eastern Meteor had been registered only in Panama, there would have been no question that it was covered
by paragraph 1 of NSB Memorandum Circular No. 71. It is well- known that foreign-owned and foreign-registered vessels have
frequently also secured Philippine registration where the interest or convenience of the owners dictated such second or dual
registration. The effect of the parenthetical phrase in paragraph 2 is, as already indicated, to bring such dual-registered vessel
within the scope not of paragraph 2, but of paragraph 1. The fact that POEA Memorandum Circular No. 6 (Series of 1986) in
upgrading death benefits (P250,000.00 for master and chief engineers) specified that such upgraded benefits "shall be
applicable to all Filipino seamen on board any ocean-going vessel provided the cause of action occurs on March 1, 1986 and
thereafter" suggests to us the correctness of our above reading of NSB Memorandum Circular No. 71. The underlying
regulatory policy, as we see it, is that Filipino seamen working on ocean-going vessels should receive the same wages and
benefits, without regard to the nationality or nationalities of the vessels on which they serve. We hold that the POEA correctly
held private respondent Mrs. Zaragoza entitled to the benefits given to Philippine seamen under the provisions of Section D.
paragraph 1 of NSB Memorandum Circular No. 71, i.e. (1) P100,000.00 death benefit, and in addition, (2) death and related
benefits provided under applicable ordinary laws of the Philippines administered by the Social Security System.

WHEREFORE, the Petition for certiorari is DISMISSED and the Decision of the POEA in POEA Case No. L-86-01-026 is hereby
AFFIRMED. The Temporary Restraining Order of 8 April 1987 is hereby LIFTED.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.

G.R. No. 166920 February 19, 2007

PACIFIC CONSULTANTS INTERNATIONAL ASIA, INC. and JENS PETER HENRICHSEN, Petitioners,
vs.
KLAUS K. SCHONFELD, Respondent.

DECISION

CALLEJO, SR., J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court of the Decision1 of the Court of
Appeals (CA) in CA-G.R. SP No. 76563. The CA decision reversed the Resolution of the National Labor Relations Commission
(NLRC) in NLRC NCR CA No. 029319-01, which, in turn, affirmed the Decision of the Labor Arbiter in NLRC NCR Case No. 30-
12-04787-00 dismissing the complaint of respondent Klaus K. Schonfeld.

The antecedent facts are as follows:

Respondent is a Canadian citizen and was a resident of New Westminster, British Columbia, Canada. He had been a consultant
in the field of environmental engineering and water supply and sanitation. Pacicon Philippines, Inc. (PPI) is a corporation duly
established and incorporated in accordance with the laws of the Philippines. The primary purpose of PPI was to engage in the
business of providing specialty and technical services both in and out of the Philippines. 2 It is a subsidiary of Pacific
Consultants International of Japan (PCIJ). The president of PPI, Jens Peter Henrichsen, who was also the director of PCIJ, was
based in Tokyo, Japan. Henrichsen commuted from Japan to Manila and vice versa, as well as in other countries where PCIJ had
business.

In 1997, PCIJ decided to engage in consultancy services for water and sanitation in the Philippines. In October 1997,
respondent was employed by PCIJ, through Henrichsen, as Sector Manager of PPI in its Water and Sanitation Department.
However, PCIJ assigned him as PPI sector manager in the Philippines. His salary was to be paid partly by PPI and PCIJ.

On January 7, 1998, Henrichsen transmitted a letter of employment to respondent in Canada, requesting him to accept the
same and affix his conformity thereto. Respondent made some revisions in the letter of employment and signed the
contract.3 He then sent a copy to Henrichsen. The letter of employment reads:

Mr. Klaus K. Schonfeld

II-365 Ginger Drive
New Westminster, B.C.
Canada V3L 5L5
Tokyo 7
January 1998

Dear Mr. Schonfeld,

Letter of Employment

This Letter of Employment with the attached General Conditions of Employment constitutes the agreement under which you
will be engaged by our Company on the terms and conditions defined hereunder. In case of any discrepancies or
contradictions between this Letter of Employment and the General Conditions of Employment, this Letter of Employment will
prevail.

You will, from the date of commencement, be ["seconded"] to our subsidiary Pacicon Philippines, Inc. in Manila, hereinafter
referred as Pacicon. Pacicon will provide you with a separate contract, which will define that part of the present terms and
conditions for which Pacicon is responsible. In case of any discrepancies or contradictions between the present Letter of
Employment and the contract with Pacicon Philippines, Inc. or in the case that Pacicon should not live up to its obligations, this
Letter of Employment will prevail.

1. Project Country: The Philippines with possible short-term assignments in other countries.

2. Duty Station: Manila, the Philippines.

3. Family Status: Married.

4. Position: Sector Manager, Water and Sanitation.

5. Commencement: 1st October 1997.

6. Remuneration: US$7,000.00 per month. The amount will be paid partly as a local salary (US$2,100.00 per month)
by Pacicon and partly as an offshore salary (US$4,900.00) by PCI to bank accounts to be nominated by you.

A performance related component corresponding to 17.6% of the total annual remuneration, subject to satisfactory
performance against agreed tasks and targets, paid offshore.

7. Accommodation: The company will provide partly furnished accommodation to a rent including association fees,
taxes and VAT not exceeding the Pesos equivalent of US$2,900.00 per month.

8. Transportation: Included for in the remuneration.

9. Leave Travels: You are entitled to two leave travels per year.

10. Shipment of Personal

Effects: The maximum allowance is US$4,000.00.

11. Mobilization

Travel: Mobilization travel will be from New Westminster, B.C., Canada.

This letter is send (sic) to you in duplicate; we kindly request you to sign and return one copy to us.

Yours sincerely,

Pacific Consultants International

Jens Peter Henrichsen

Above terms and conditions accepted

Date: 2 March 1998

(Sgd.)
Klaus Schonfeld

as annotated and initialed4

Section 21 of the General Conditions of Employment appended to the letter of employment reads:

21 Arbitration
Any question of interpretation, understanding or fulfillment of the conditions of employment, as well as any question arising
between the Employee and the Company which is in consequence of or connected with his employment with the Company and
which can not be settled amicably, is to be finally settled, binding to both parties through written submissions, by the Court of
Arbitration in London.5

Respondent arrived in the Philippines and assumed his position as PPI Sector Manager. He was accorded the status of a
resident alien.

As required by Rule XIV (Employment of Aliens) of the Omnibus Rules Implementing the Labor Code, PPI applied for an Alien
Employment Permit (Permit) for respondent before the Department of Labor and Employment (DOLE). It appended
respondent’s contract of employment to the application.1awphi1.net

On February 26, 1999, the DOLE granted the application and issued the Permit to respondent. It reads:

Republic of the Philippines

Department of Labor & Employment
National Capital Region

ALIEN EMPLOYMENT PERMIT

ISSUED TO: SCHONFELD, KLAUS KURT

DATE OF BIRTH: January 11, 1942 NATIONALITY: Canadian

POSITION: VP – WATER & SANITATION

EMPLOYER: PACICON PHILIPPINES, INC.

ADDRESS: 27/F Rufino Pacific Towers Bldg., Ayala Ave., Makati City

PERMIT

ISSUED ON: February 26, 1999 SIGNATURE OF BEARER:

VALID UNTIL: January 7, 2000 (Sgd.)

APPROVED: BIENVENIDO S. LAGUESMA

By: MAXIMO B. ANITO

REGIONAL DIRECTOR

(Emphasis supplied)6

Respondent received his compensation from PPI for the following periods: February to June 1998, November to December
1998, and January to August 1999. He was also reimbursed by PPI for the expenses he incurred in connection with his work as
sector manager. He reported for work in Manila except for occasional assignments abroad, and received instructions from
Henrichsen.7

On May 5, 1999, respondent received a letter from Henrichsen informing him that his employment had been terminated
effective August 4, 1999 for the reason that PCIJ and PPI had not been successful in the water and sanitation sector in the
Philippines.8 However, on July 24, 1999, Henrichsen, by electronic mail,9 requested respondent to stay put in his job after
August 5, 1999, until such time that he would be able to report on certain projects and discuss all the opportunities he had
developed.10 Respondent continued his work with PPI until the end of business hours on October 1, 1999.

Respondent filed with PPI several money claims, including unpaid salary, leave pay, air fare from Manila to Canada, and cost of
shipment of goods to Canada. PPI partially settled some of his claims (US$5,635.99), but refused to pay the rest.

On December 5, 2000, respondent filed a Complaint11 for Illegal Dismissal against petitioners PPI and Henrichsen with the
Labor Arbiter. It was docketed as NLRC-NCR Case No. 30-12-04787-00.

In his Complaint, respondent alleged that he was illegally dismissed; PPI had not notified the DOLE of its decision to close one
of its departments, which resulted in his dismissal; and they failed to notify him that his employment was terminated after
August 4, 1999. Respondent also claimed for separation pay and other unpaid benefits. He alleged that the company acted in
bad faith and disregarded his rights. He prayed for the following reliefs:

1. Judgment be rendered in his favor ordering the respondents to reinstate complainant to his former position
without loss of seniority and other privileges and benefits, and to pay his full backwages from the time compensation
was with held (sic) from him up to the time of his actual reinstatement. In the alternative, if reinstatement is no longer
 feasible, respondents must pay the complainant full backwages, and separation pay equivalent to one month pay for
every year of service, or in the amount of US$16,400.00 as separation pay;

2. Judgment be rendered ordering the respondents to pay the outstanding monetary obligation to complainant in the
amount of US$10,131.76 representing the balance of unpaid salaries, leave pay, cost of his air travel and shipment of
goods from Manila to Canada; and

3. Judgment be rendered ordering the respondent company to pay the complainant damages in the amount of no less
than US $10,000.00 and to pay 10% of the total monetary award as attorney’s fees, and costs.

Other reliefs just and equitable under the premises are, likewise, prayed for.12 1awphi1.net

Petitioners filed a Motion to Dismiss the complaint on the following grounds: (1) the Labor Arbiter had no jurisdiction over the
subject matter; and (2) venue was improperly laid. It averred that respondent was a Canadian citizen, a transient expatriate
who had left the Philippines. He was employed and dismissed by PCIJ, a foreign corporation with principal office in Tokyo,
Japan. Since respondent’s cause of action was based on his letter of employment executed in Tokyo, Japan dated January 7,
1998, under the principle of lex loci contractus, the complaint should have been filed in Tokyo, Japan. Petitioners claimed that
respondent did not offer any justification for filing his complaint against PPI before the NLRC in the Philippines. Moreover,
under Section 12 of the General Conditions of Employment appended to the letter of employment dated January 7, 1998,
complainant and PCIJ had agreed that any employment-related dispute should be brought before the London Court of
Arbitration. Since even the Supreme Court had already ruled that such an agreement on venue is valid, Philippine courts have
no jurisdiction.13

Respondent opposed the Motion, contending that he was employed by PPI to work in the Philippines under contract separate
from his January 7, 1998 contract of employment with PCIJ. He insisted that his employer was PPI, a Philippine-registered
corporation; it is inconsequential that PPI is a wholly-owned subsidiary of PCIJ because the two corporations have separate
and distinct personalities; and he received orders and instructions from Henrichsen who was the president of PPI. He further
insisted that the principles of forum non conveniens and lex loci contractus do not apply, and that although he is a Canadian
citizen, Philippine Labor Laws apply in this case.

Respondent adduced in evidence the following contract of employment dated January 9, 1998 which he had entered into with
Henrichsen:

Mr. Klaus K. Schonfeld

II-365 Ginger Drive

New Westminster, B.C.
Canada V3L 5L5

Manila 9 January, 1998

Dear Mr. Schonfeld,

Letter of Employment

This Letter of Employment with the attached General Conditions of Employment constitutes the agreement, under which you
will be engaged by Pacicon Philippines, Inc. on the terms and conditions defined hereunder.

1. Project Country: The Philippines with possible assignments in other countries.

2. Duty Station: Manila, the Philippines.

3. Family Status: Married.

4. Position: Sector Manager – Water and Sanitation Sector.

5. Commencement: 1 January, 1998.

6. Remuneration: US$3,100.00 per month payable to a bank account to be nominated by you.

7. Accommodation: The company will provide partly furnished accommodation to a rent including association fees,
taxes and VAT not exceeding the Pesos equivalent of US$2300.00 per month.

8. Transportation: Included for in the remuneration.

9. Shipment of Personal The maximum allowance is US$2500.00 in Effects: connection with initial shipment of
personal effects from Canada.

10. Mobilization Travel: Mobilization travel will be from New Westminster, B.C., Canada.
This letter is send (sic) to you in duplicate; we kindly request you to sign and return one copy to us.

Yours sincerely,

Pacicon Philippines, Inc.

Jens Peter Henrichsen
President14

According to respondent, the material allegations of the complaint, not petitioners’ defenses, determine which quasi-judicial
body has jurisdiction. Section 21 of the Arbitration Clause in the General Conditions of Employment does not provide for an
exclusive venue where the complaint against PPI for violation of the Philippine Labor Laws may be filed. Respondent pointed
out that PPI had adopted two inconsistent positions: it was first alleged that he should have filed his complaint in Tokyo,
Japan; and it later insisted that the complaint should have been filed in the London Court of Arbitration. 15

In their reply, petitioners claimed that respondent’s employer was PCIJ, which had exercised supervision and control over him,
and not PPI. Respondent was dismissed by PPI via a letter of Henrichsen under the letterhead of PCIJ in Japan.16 The letter of
employment dated January 9, 1998 which respondent relies upon did not bear his (respondent’s) signature nor that of
Henrichsen.

On August 2, 2001, the Labor Arbiter rendered a decision granting petitioners’ Motion to Dismiss. The dispositive portion
reads:

WHEREFORE, finding merit in respondents’ Motion to Dismiss, the same is hereby granted. The instant complaint filed by the
complainant is dismissed for lack of merit.

SO ORDERED.17

The Labor Arbiter found, among others, that the January 7, 1998 contract of employment between respondent and PCIJ was
controlling; the Philippines was only the "duty station" where Schonfeld was required to work under the General Conditions of
Employment. PCIJ remained respondent’s employer despite his having been sent to the Philippines. Since the parties had
agreed that any differences regarding employer-employee relationship should be submitted to the jurisdiction of the court of
arbitration in London, this agreement is controlling.

On appeal, the NLRC agreed with the disquisitions of the Labor Arbiter and affirmed the latter’s decision in toto.18

Respondent then filed a petition for certiorari under Rule 65 with the CA where he raised the following arguments:

WITH ALL DUE RESPECT, THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE LABOR ARBITER’S DECISION
CONSIDERING THAT:

A. PETITIONER’S TRUE EMPLOYER IS NOT PACIFIC CONSULTANTS INTERNATIONAL OF JAPAN BUT RESPONDENT
COMPANY, AND THEREFORE, THE LABOR ARBITER HAS JURISDICTION OVER THE INSTANT CASE; AND

B. THE PROPER VENUE FOR THE PRESENT COMPLAINT IS THE ARBITRATION BRANCH OF THE NLRC AND NOT THE COURT
OF ARBITRATION IN LONDON.

II

WITH ALL DUE RESPECT, THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE DISMISSAL OF THE COMPLAINT
CONSIDERING THAT PETITIONER’S TERMINATION FROM EMPLOYMENT IS ILLEGAL:

A. THE CLOSURE OF RESPONDENT COMPANY’S WATER AND SANITATION SECTOR WAS NOT BONA FIDE.

B. ASSUMING ARGUENDO THAT THE CLOSURE OF RESPONDENT COMPANY’S WATER AND SANITATION SECTOR
WAS JUSTIFIABLE, PETITIONER’S DISMISSAL WAS INEFFECTUAL AS THE DEPARTMENT OF LABOR AND
EMPLOYMENT (DOLE) AND PETITIONER WAS NOT NOTIFIED THIRTY (30) DAYS BEFORE THE ALLEGED CLOSURE. 19

Respondent averred that the absence or existence of a written contract of employment is not decisive of whether he is an
employee of PPI. He maintained that PPI, through its president Henrichsen, directed his work/duties as Sector Manager of PPI;
proof of this was his letter-proposal to the Development Bank of the Philippines for PPI to provide consultancy services for the
Construction Supervision of the Water Supply and Sanitation component of the World Bank-Assisted LGU Urban Water and
Sanitation Project.20 He emphasized that as gleaned from Alien Employment Permit (AEP) No. M-029908-5017 issued to him
by DOLE on February 26, 1999, he is an employee of PPI. It was PPI president Henrichsen who terminated his employment;
PPI also paid his salary and reimbursed his expenses related to transactions abroad. That PPI is a wholly-owned subsidiary of
PCIJ is of no moment because the two corporations have separate and distinct personalities.
The CA found the petition meritorious. Applying the four-fold test21 of determining an employer-employee relationship, the CA
declared that respondent was an employee of PPI. On the issue of venue, the appellate court declared that, even under the
January 7, 1998 contract of employment, the parties were not precluded from bringing a case related thereto in other venues.
While there was, indeed, an agreement that issues between the parties were to be resolved in the London Court of Arbitration,
the venue is not exclusive, since there is no stipulation that the complaint cannot be filed in any other forum other than in the
Philippines.

On November 25, 2004, the CA rendered its decision granting the petition, the decretal portion of which reads:

WHEREFORE, the petition is GRANTED in that the assailed Resolutions of the NLRC are hereby REVERSED and SET ASIDE. Let
this case be REMANDED to the Labor Arbiter a quo for disposition of the case on the merits.

SO ORDERED.22

A motion for the reconsideration of the above decision was filed by PPI and Henrichsen, which the appellate court denied for
lack of merit.23

In the present recourse, PPI and Henrichsen, as petitioners, raise the following issues:

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT AN EMPLOYMENT RELATIONSHIP EXISTED BETWEEN
PETITIONERS AND RESPONDENT DESPITE THE UNDISPUTED FACT THAT RESPONDENT, A FOREIGN NATIONAL, WAS
HIRED ABROAD BY A FOREIGN CORPORATION, EXECUTED HIS EMPLOYMENT CONTRACT ABROAD, AND WAS MERELY
"SECONDED" TO PETITIONERS SINCE HIS WORK ASSIGNMENT WAS IN MANILA.

II

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE LABOR ARBITER A QUO HAS JURISDICTION OVER
RESPONDENT’S CLAIM DESPITE THE UNDISPUTED FACT THAT RESPONDENT, A FOREIGN NATIONAL, WAS HIRED ABROAD
BY A FOREIGN CORPORATION, EXECUTED HIS EMPLOYMENT CONTRACT ABROAD, AND HAD AGREED THAT ANY DISPUTE
BETWEEN THEM "SHALL BE FINALLY SETTLED BY THE COURT OF ARBITRATION IN LONDON." 24

Petitioners fault the CA for reversing the findings of the Labor Arbiter and the NLRC. Petitioners aver that the findings of the
Labor Arbiter, as affirmed by the NLRC, are conclusive on the CA. They maintain that it is not within the province of the
appellate court in a petition for certiorari to review the facts and evidence on record since there was no conflict in the factual
findings and conclusions of the lower tribunals. Petitioners assert that such findings and conclusions, having been made by
agencies with expertise on the subject matter, should be deemed binding and conclusive. They contend that it was the PCIJ
which employed respondent as an employee; it merely seconded him to petitioner PPI in the Philippines, and assigned him to
work in Manila as Sector Manager. Petitioner PPI, being a wholly-owned subsidiary of PCIJ, was never the employer of
respondent.

Petitioners assert that the January 9, 1998 letter of employment which respondent presented to prove his employment with
petitioner PPI is of doubtful authenticity since it was unsigned by the purported parties. They insist that PCIJ paid
respondent’s salaries and only coursed the same through petitioner PPI. PPI, being its subsidiary, had supervision and control
over respondent’s work, and had the responsibilities of monitoring the "daily administration" of respondent. Respondent
cannot rely on the pay slips, expenses claim forms, and reimbursement memoranda to prove that he was an employee of
petitioner PPI because these documents are of doubtful authenticity.

Petitioners further contend that, although Henrichsen was both a director of PCIJ and president of PPI, it was he who signed
the termination letter of respondent upon instructions of PCIJ. This is buttressed by the fact that PCIJ’s letterhead was used to
inform him that his employment was terminated. Petitioners further assert that all work instructions came from PCIJ and that
petitioner PPI only served as a "conduit." Respondent’s Alien Employment Permit stating that petitioner PPI was his employer
is but a necessary consequence of his being "seconded" thereto. It is not sufficient proof that petitioner PPI is respondent’s
employer. The entry was only made to comply with the DOLE requirements.

There being no evidence that petitioner PPI is the employer of respondent, the Labor Arbiter has no jurisdiction over
respondent’s complaint.

Petitioners aver that since respondent is a Canadian citizen, the CA erred in ignoring their claim that the principlesof forum
non conveniens and lex loci contractus are applicable. They also point out that the principal office, officers and staff of PCIJ are
stationed in Tokyo, Japan; and the contract of employment of respondent was executed in Tokyo, Japan.

Moreover, under Section 21 of the General Conditions for Employment incorporated in respondent’s January 7, 1998 letter of
employment, the dispute between respondent and PCIJ should be settled by the court of arbitration of London. Petitioners
claim that the words used therein are sufficient to show the exclusive and restrictive nature of the stipulation on venue.

Petitioners insist that the U.S. Labor-Management Act applies only to U.S. workers and employers, while the Labor Code of the
Philippines applies only to Filipino employers and Philippine-based employers and their employees, not to PCIJ. In fine, the
jurisdictions of the NLRC and Labor Arbiter do not extend to foreign workers who executed employment agreements with
foreign employers abroad, although "seconded" to the Philippines.25

In his Comment,26 respondent maintains that petitioners raised factual issues in their petition which are proscribed under
Section 1, Rule 45 of the Rules of Court. The finding of the CA that he had been an employee of petitioner PPI and not of PCIJ is
buttressed by his documentary evidence which both the Labor Arbiter and the NLRC ignored; they erroneously opted to
dismiss his complaint on the basis of the letter of employment and Section 21 of the General Conditions of Employment. In
contrast, the CA took into account the evidence on record and applied case law correctly.

The petition is denied for lack of merit.

It must be stressed that in resolving a petition for certiorari, the CA is not proscribed from reviewing the evidence on record.
Under Section 9 of Batas Pambansa Blg. 129, as amended by R.A. No. 7902, the CA is empowered to pass upon the evidence, if
and when necessary, to resolve factual issues.27 If it appears that the Labor Arbiter and the NLRC misappreciated the evidence
to such an extent as to compel a contrary conclusion if such evidence had been properly appreciated, the factual findings of
such tribunals cannot be given great respect and finality. 28

Inexplicably, the Labor Arbiter and the NLRC ignored the documentary evidence which respondent appended to his pleadings
showing that he was an employee of petitioner PPI; they merely focused on the January 7, 1998 letter of employment and
Section 21 of the General Conditions of Employment.

Petitioner PPI applied for the issuance of an AEP to respondent before the DOLE. In said application, PPI averred that
respondent is its employee. To show that this was the case, PPI appended a copy of respondent’s employment contract. The
DOLE then granted the application of PPI and issued the permit.

It bears stressing that under the Omnibus Rules Implementing the Labor Code, one of the requirements for the issuance of an
employment permit is the employment contract. Section 5, Rule XIV (Employment of Aliens) of the Omnibus Rules provides:

SECTION 1. Coverage. – This rule shall apply to all aliens employed or seeking employment in the Philippines and the present
or prospective employers.

SECTION 2. Submission of list. – All employers employing foreign nationals, whether resident or non-resident, shall submit a
list of nationals to the Bureau indicating their names, citizenship, foreign and local address, nature of employment and status
of stay in the Philippines.

SECTION 3. Registration of resident aliens. – All employed resident aliens shall register with the Bureau under such guidelines
as may be issued by it.

SECTION 4. Employment permit required for entry. – No alien seeking employment, whether as a resident or non-resident,
may enter the Philippines without first securing an employment permit from the Ministry. If an alien enters the country under
a non-working visa and wishes to be employed thereafter, he may only be allowed to be employed upon presentation of a duly
approved employment permit.

SECTION 5. Requirements for employment permit applicants. – The application for an employment permit shall be
accompanied by the following:

(a) Curriculum vitae duly signed by the applicant indicating his educational background, his work experience and
other data showing that he possesses technical skills in his trade or profession.

(b) Contract of employment between the employer and the principal which shall embody the following, among others:

1. That the non-resident alien worker shall comply with all applicable laws and rules and regulations of the
Philippines;

2. That the non-resident alien worker and the employer shall bind themselves to train at least two (2) Filipino
understudies for a period to be determined by the Minister; and

3. That he shall not engage in any gainful employment other than that for which he was issued a permit.

(c) A designation by the employer of at least two (2) understudies for every alien worker. Such understudies must be
the most ranking regular employees in the section or department for which the expatriates are being hired to insure
the actual transfer of technology.

Under Section 6 of the Rule, the DOLE may issue an alien employment permit based only on the following:

(a) Compliance by the applicant and his employer with the requirements of Section 2 hereof;

(b) Report of the Bureau Director as to the availability or non-availability of any person in the Philippines who is
competent and willing to do the job for which the services of the applicant are desired;
 (c) His assessment as to whether or not the employment of the applicant will redound to the national interest;

(d) Admissibility of the alien as certified by the Commission on Immigration and Deportation;

(e) The recommendation of the Board of Investments or other appropriate government agencies if the applicant will
be employed in preferred areas of investments or in accordance with the imperative of economic development.

Thus, as claimed by respondent, he had an employment contract with petitioner PPI; otherwise, petitioner PPI would not have
filed an application for a Permit with the DOLE. Petitioners are thus estopped from alleging that the PCIJ, not petitioner PPI,
had been the employer of respondent all along.

We agree with the conclusion of the CA that there was an employer-employee relationship between petitioner PPI and
respondent using the four-fold test. Jurisprudence is firmly settled that whenever the existence of an employment relationship
is in dispute, four elements constitute the reliable yardstick: (a) the selection and engagement of the employee; (b) the
payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee’s conduct. It is the so-
called "control test" which constitutes the most important index of the existence of the employer-employee relationship–that
is, whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be
done but also as to the means and methods by which the same is to be accomplished. Stated otherwise, an employer-employee
relationship exists where the person for whom the services are performed reserves the right to control not only the end to be
achieved but also the means to be used in reaching such end.29 We quote with approval the following ruling of the CA:

[T]here is, indeed, substantial evidence on record which would erase any doubt that the respondent company is the true
employer of petitioner. In the case at bar, the power to control and supervise petitioner’s work performance devolved upon
the respondent company. Likewise, the power to terminate the employment relationship was exercised by the President of the
respondent company. It is not the letterhead used by the company in the termination letter which controls, but the person
who exercised the power to terminate the employee. It is also inconsequential if the second letter of employment executed in
the Philippines was not signed by the petitioner. An employer-employee relationship may indeed exist even in the absence of a
written contract, so long as the four elements mentioned in the Mafinco case are all present. 30

The settled rule on stipulations regarding venue, as held by this Court in the vintage case of Philippine Banking Corporation v.
Tensuan,31 is that while they are considered valid and enforceable, venue stipulations in a contract do not, as a rule, supersede
the general rule set forth in Rule 4 of the Revised Rules of Court in the absence of qualifying or restrictive words. They should
be considered merely as an agreement or additional forum, not as limiting venue to the specified place. They are not exclusive
but, rather permissive. If the intention of the parties were to restrict venue, there must be accompanying language clearly and
categorically expressing their purpose and design that actions between them be litigated only at the place named by them. 32

In the instant case, no restrictive words like "only," "solely," "exclusively in this court," "in no other court save —,"
"particularly," "nowhere else but/except —," or words of equal import were stated in the contract.33 It cannot be said that the
court of arbitration in London is an exclusive venue to bring forth any complaint arising out of the employment contract.

Petitioners contend that respondent should have filed his Complaint in his place of permanent residence, or where the PCIJ
holds its principal office, at the place where the contract of employment was signed, in London as stated in their contract. By
enumerating possible venues where respondent could have filed his complaint, however, petitioners themselves admitted that
the provision on venue in the employment contract is indeed merely permissive.

Petitioners’ insistence on the application of the principle of forum non conveniens must be rejected. The bare fact that
respondent is a Canadian citizen and was a repatriate does not warrant the application of the principle for the following
reasons:

First. The Labor Code of the Philippines does not include forum non conveniens as a ground for the dismissal of the
complaint.34

Second. The propriety of dismissing a case based on this principle requires a factual determination; hence, it is
properly considered as defense.35

Third. In Bank of America, NT&SA, Bank of America International, Ltd. v. Court of Appeals, 36 this Court held that:

x x x [a] Philippine Court may assume jurisdiction over the case if it chooses to do so; provided, that the following requisites
are met: (1) that the Philippine Court is one to which the parties may conveniently resort to; (2) that the Philippine Court is in
a position to make an intelligent decision as to the law and the facts; and, (3) that the Philippine Court has or is likely to have
power to enforce its decision. x x x

Admittedly, all the foregoing requisites are present in this case.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 76563 is AFFIRMED. This case is
REMANDED to the Labor Arbiter for disposition of the case on the merits. Cost against petitioners.

SO ORDERED.
G.R. No. 75112 August 17, 1992

FILAMER CHRISTIAN INSTITUTE, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT, HON. ENRIQUE P. SUPLICO, in his capacity as Judge of the Regional Trial
Court, Branch XIV, Roxas City and POTENCIANO KAPUNAN, SR., respondents.

Bedona & Bedona Law Office for petitioner.

Rhodora G. Kapunan for private respondents.

GUTIERREZ, JR., J.:

The private respondents, heirs of the late Potenciano Kapunan, seek reconsideration of the decision rendered by this Court on
October 16, 1990 (Filamer Christian Institute v. Court of Appeals, 190 SCRA 477) reviewing the appellate court's conclusion
that there exists an employer-employee relationship between the petitioner and its co-defendant Funtecha. The Court ruled
that the petitioner is not liable for the injuries caused by Funtecha on the grounds that the latter was not an authorized driver
for whose acts the petitioner shall be directly and primarily answerable, and that Funtecha was merely a working scholar who,
under Section 14, Rule X, Book III of the Rules and Regulations Implementing the Labor Code is not considered an employee of
the petitioner.

The private respondents assert that the circumstances obtaining in the present case call for the application of Article 2180 of
the Civil Code since Funtecha is no doubt an employee of the petitioner. The private respondents maintain that under Article
2180 an injured party shall have recourse against the servant as well as the petitioner for whom, at the time of the incident,
the servant was performing an act in furtherance of the interest and for the benefit of the petitioner. Funtecha allegedly did
not steal the school jeep nor use it for a joy ride without the knowledge of the school authorities.

After a re-examination of the laws relevant to the facts found by the trial court and the appellate court, the Court reconsiders
its decision. We reinstate the Court of Appeals' decision penned by the late Justice Desiderio Jurado and concurred in by
Justices Jose C. Campos, Jr. and Serafin E. Camilon. Applying Civil Code provisions, the appellate court affirmed the trial court
decision which ordered the payment of the P20,000.00 liability in the Zenith Insurance Corporation policy, P10,000.00 moral
damages, P4,000.00 litigation and actual expenses, and P3,000.00 attorney's fees.

It is undisputed that Funtecha was a working student, being a part-time janitor and a scholar of petitioner Filamer. He was, in
relation to the school, an employee even if he was assigned to clean the school premises for only two (2) hours in the morning
of each school day.

Having a student driver's license, Funtecha requested the driver, Allan Masa, and was allowed, to take over the vehicle while
the latter was on his way home one late afternoon. It is significant to note that the place where Allan lives is also the house of
his father, the school president, Agustin Masa. Moreover, it is also the house where Funtecha was allowed free board while he
was a student of Filamer Christian Institute.

Allan Masa turned over the vehicle to Funtecha only after driving down a road, negotiating a sharp dangerous curb, and
viewing that the road was clear. (TSN, April 4, 1983, pp. 78-79) According to Allan's testimony, a fast moving truck with
glaring lights nearly hit them so that they had to swerve to the right to avoid a collision. Upon swerving, they heard a sound as
if something had bumped against the vehicle, but they did not stop to check. Actually, the Pinoy jeep swerved towards the
pedestrian, Potenciano Kapunan who was walking in his lane in the direction against vehicular traffic, and hit him. Allan
affirmed that Funtecha followed his advise to swerve to the right. (Ibid., p. 79) At the time of the incident (6:30 P.M.) in Roxas
City, the jeep had only one functioning headlight.

Allan testified that he was the driver and at the same time a security guard of the petitioner-school. He further said that there
was no specific time for him to be off-duty and that after driving the students home at 5:00 in the afternoon, he still had to go
back to school and then drive home using the same vehicle.

Driving the vehicle to and from the house of the school president where both Allan and Funtecha reside is an act in furtherance
of the interest of the petitioner-school. Allan's job demands that he drive home the school jeep so he can use it to fetch
students in the morning of the next school day.

It is indubitable under the circumstances that the school president had knowledge that the jeep was routinely driven home for
the said purpose. Moreover, it is not improbable that the school president also had knowledge of Funtecha's possession of a
student driver's license and his desire to undergo driving lessons during the time that he was not in his classrooms.

In learning how to drive while taking the vehicle home in the direction of Allan's house, Funtecha definitely was not having a
joy ride. Funtecha was not driving for the purpose of his enjoyment or for a "frolic of his own" but ultimately, for the service
for which the jeep was intended by the petitioner school. (See L. Battistoni v. Thomas, Can SC 144, 1 D.L.R. 577, 80 ALR 722
[1932]; See also Association of Baptists for World Evangelism, Inc. v. Fieldmen's Insurance Co., Inc. 124 SCRA 618 [1983]).
Therefore, the Court is constrained to conclude that the act of Funtecha in taking over the steering wheel was one done for and
in behalf of his employer for which act the petitioner-school cannot deny any responsibility by arguing that it was done
beyond the scope of his janitorial duties. The clause "within the scope of their assigned tasks" for purposes of raising the
presumption of liability of an employer, includes any act done by an employee, in furtherance of the interests of the employer
or for the account of the employer at the time of the infliction of the injury or damage. (Manuel Casada, 190 Va 906, 59 SE 2d
47 [1950]) Even if somehow, the employee driving the vehicle derived some benefit from the act, the existence of a
presumptive liability of the employer is determined by answering the question of whether or not the servant was at the time
of the accident performing any act in furtherance of his master's business. (Kohlman v. Hyland, 210 NW 643, 50 ALR 1437
[1926]; Jameson v. Gavett, 71 P 2d 937 [1937])

Section 14, Rule X, Book III of the Rules implementing the Labor Code, on which the petitioner anchors its defense, was
promulgated by the Secretary of Labor and Employment only for the purpose of administering and enforcing the provisions of
the Labor Code on conditions of employment. Particularly, Rule X of Book III provides guidelines on the manner by which the
powers of the Labor Secretary shall be exercised; on what records should be kept; maintained and preserved; on payroll; and
on the exclusion of working scholars from, and inclusion of resident physicians in the employment coverage as far as
compliance with the substantive labor provisions on working conditions, rest periods, and wages, is concerned.

In other words, Rule X is merely a guide to the enforcement of the substantive law on labor. The Court, thus, makes the
distinction and so holds that Section 14, Rule X, Book III of the Rules is not the decisive law in a civil suit for damages instituted
by an injured person during a vehicular accident against a working student of a school and against the school itself.

The present case does not deal with a labor dispute on conditions of employment between an alleged employee and an alleged
employer. It invokes a claim brought by one for damages for injury caused by the patently negligent acts of a person, against
both doer-employee and his employer. Hence, the reliance on the implementing rule on labor to disregard the primary liability
of an employer under Article 2180 of the Civil Code is misplaced. An implementing rule on labor cannot be used by an
employer as a shield to avoid liability under the substantive provisions of the Civil Code.

There is evidence to show that there exists in the present case an extra-contractual obligation arising from the negligence or
reckless imprudence of a person "whose acts or omissions are imputable, by a legal fiction, to other(s) who are in a position to
exercise an absolute or limited control over (him)." (Bahia v. Litonjua and Leynes, 30 Phil. 624 [1915])

Funtecha is an employee of petitioner Filamer. He need not have an official appointment for a driver's position in order that
the petitioner may be held responsible for his grossly negligent act, it being sufficient that the act of driving at the time of the
incident was for the benefit of the petitioner. Hence, the fact that Funtecha was not the school driver or was not acting within
the scope of his janitorial duties does not relieve the petitioner of the burden of rebutting the presumption juris tantum that
there was negligence on its part either in the selection of a servant or employee, or in the supervision over him. The petitioner
has failed to show proof of its having exercised the required diligence of a good father of a family over its employees Funtecha
and Allan.

The Court reiterates that supervision includes the formulation of suitable rules and regulations for the guidance of its
employees and the issuance of proper instructions intended for the protection of the public and persons with whom the
employer has relations through his employees. (Bahia v. Litonjua and Leynes, supra, at p. 628; Phoenix Construction, v.
Intermediate Appellate Court, 148 SCRA 353 [1987])

An employer is expected to impose upon its employees the necessary discipline called for in the performance of any act
indispensable to the business and beneficial to their employer.

In the present case, the petitioner has not shown that it has set forth such rules and guidelines as would prohibit any one of its
employees from taking control over its vehicles if one is not the official driver or prohibiting the driver and son of the Filamer
president from authorizing another employee to drive the school vehicle. Furthermore, the petitioner has failed to prove that
it had imposed sanctions or warned its employees against the use of its vehicles by persons other than the driver.

The petitioner, thus, has an obligation to pay damages for injury arising from the unskilled manner by which Funtecha drove
the vehicle. (Cangco v. Manila Railroad Co., 38 Phil. 768, 772 [1918]). In the absence of evidence that the petitioner had
exercised the diligence of a good father of a family in the supervision of its employees, the law imposes upon it the vicarious
liability for acts or omissions of its employees. (Umali v. Bacani, 69 SCRA 263 [1976]; Poblete v. Fabros, 93 SCRA 200 [1979];
Kapalaran Bus Liner v. Coronado, 176 SCRA 792 [1989]; Franco v. Intermediate Appellate Court, 178 SCRA 331 [1989];
Pantranco North Express, Inc. v. Baesa, 179 SCRA 384 [1989]) The liability of the employer is, under Article 2180, primary and
solidary. However, the employer shall have recourse against the negligent employee for whatever damages are paid to the
heirs of the plaintiff.

It is an admitted fact that the actual driver of the school jeep, Allan Masa, was not made a party defendant in the civil case for
damages. This is quite understandable considering that as far as the injured pedestrian, plaintiff Potenciano Kapunan, was
concerned, it was Funtecha who was the one driving the vehicle and presumably was one authorized by the school to drive.
The plaintiff and his heirs should not now be left to suffer without simultaneous recourse against the petitioner for the
consequent injury caused by a janitor doing a driving chore for the petitioner even for a short while. For the purpose of
recovering damages under the prevailing circumstances, it is enough that the plaintiff and the private respondent heirs were
able to establish the existence of employer-employee relationship between Funtecha and petitioner Filamer and the fact that
Funtecha was engaged in an act not for an independent purpose of his own but in furtherance of the business of his employer.
A position of responsibility on the part of the petitioner has thus been satisfactorily demonstrated.

WHEREFORE, the motion for reconsideration of the decision dated October 16, 1990 is hereby GRANTED. The decision of the
respondent appellate court affirming the trial court decision is REINSTATED.
SO ORDERED.

Feliciano, Bidin, Davide, Jr. and Romero, JJ., concur.

GR No. L-1309 July 26, 1948

THE SHELL COMPANY OF PHILIPPINE ISLANDS, LIMITED, recurring,

vs.
NATIONAL LABOR UNION, appealed.

Messrs. Ross, Selph, Carrascoso and Janda in representation of the appellant.

Messrs. Paguia and Villanueva in representation of the respondent.

BRIONES, J .:

Acting on a petition of the working entity called "National Labor Union," the Industrial Relations Court has issued a decision in
which, among other things, the oil company "The Shell Company of Philippine Islands, Limited" is obligated to pay to its
workers who work at night (from sunset until the next day) an additional compensation of 50% on their regular wages if they
worked during the day. It seems that the commissary needs the night service of a certain number of workers, since the planes
coming from abroad usually land and take off at night, being therefore necessary that night work be done for the supply of
gasoline and lubricants, and for other necessitiescertiorari so that we can revoke it.

The appellant company argues and argues that not only is there no legal provision empowering the Industrial Relations Court
to order the payment of additional compensation to workers who work at night, but, on the contrary, Commonwealth Law No.
444 exempts the employer from such obligation since in said law cases are provided in which the payment of overtime is
compulsory (additional compensation), and among such cases night work is not included.

For its part, the workers' union under appeal maintains that the power discussed is part of the broad and effective powers that
Commonwealth Law No. 103 - the organic charter of the Industrial Relations Tribunal - grants to said court; and that the
Commonwealth Law No. 444 invoked has no application to this case, since it is of limited scope, referring particularly and
exclusively to the maximum working day allowed in industrial establishments - the 8-day working day. hours.

Our conclusion is that the workers' union appealed is right on their part. For a clear and thorough elucidation of the points
discussed, we deem it convenient, even at the risk of extending this paper, to transcribe the pertinent legal provisions that are
Articles 1, 4 and 13 of Commonwealth Law No. 103. Here:

SECTION 1. The Judge: his appointment, qualifications, compensation, tenure. - There is hereby created a Court of
Industrial Relations, which shall have jurisdiction over the entire Philippines, to consider, investigate, decide, and
settle any question, matter, controversy or dispute arising between, and / or affecting, employers and employees or
laborers , and landlords and tenants or farm-laborers, and regulate the relation between them, subject to, and in
accordance with, the provisions of this Act. The Court shall keep a record of all its proceedings and shall be presided
over by a Judge to be appointed by the President of the Philippines with the consent of the Commission on
Appointments of the National Assembly. The Judge of the Court shall hold office during good behavior until he reaches
the age of seventy years, or becomes incapacitated to discharge the duties of his office. His qualifications shall be the
same as those provided in the Constitution for members of the Supreme Court and shall receive an annual
compensation of ten thousand pesos and shall be entitled to traveling expenses and per diems when performing
official duties outside of the City of Manila. The Department of Justice shall have executive supervision over the Court.

SEC. 4. Strikes and lockouts. - The Court shall take cognizance for purpose of prevention, arbitration, decision and
settlement, of any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising as a result of
wages, shares or compensation, hours of labor or conditions of tenancy or employment, between employers and
employees or laborers and between landlords and tenants or farm-laborers, provided that the number of employees,
laborers or tenants or farm-laborers involved exceeds thirty, and such industrial or agricultural disputes is submitted
to the Court by The Secretary of Labor, or by any or both of the parties to the controversy and certified by the
Secretary of Labor, as is the case with the Court for the sake of public interest. In all such cases, the Secretary of Labor
or the party or parties submitting the disputes, will clearly and specifically state in writing the questions to be
decided. Upon the submission of such a controversy or question by the Secretary of Labor, his intervention therein as
authorized by law, shall cease.

The Court shall, before hearing the dispute and in the course of that hearing, endeavor to reconcile the parties and
induce them to settle the dispute by amicable agreement. If any agreement to the whole or any part of the dispute is
reached at the parties, a memorandum of its terms shall be made in writing, signed and acknowledged by the parties
thereto before the Judge of the Court or any official acting in his and authorized to administer oaths or
acknowledgments, or, before a notary public. The memorandum shall be filed in the office of the Clerk of the Court,
and, unless otherwise ordered by the Court, shall, as between the parties to the agreement, have the same effect, and
be deemed to be, a decision or award .

SEC. 13. Character of the award . - In making an award, order or decision, under the provisions of section four of this
Act, the Court shall not be restricted to the specific relief claimed or demanded by the parties to the industrial or
agricultural dispute, but may include in the award , order or decision any matter or determination which was deemed
necessary or expedient for the purpose of setting the dispute or of further industrial or agricultural disputes.
It is evident from the provisions transcribed as follows: (a) that when a dispute arises between the principal and the employee
or laborer, vgr. On a question of wages, the Industrial Relations Court has jurisdiction throughout the territory of the
Philippines to consider, investigate and resolve said dispute, fixing the salaries it deems fair and reasonable; (b) that for the
purposes of prevention, arbitration, decision and settlement, the Industrial Relations Tribunal itself has jurisdiction to hear
any dispute - industrial or agricultural - resulting from any differences with respect to wages, shares or compensation, hours
of job, conditions of employment or partnership between employers and employees or workers and between owners and
landowners or agricultural workers prior to the fulfillment of certain requirements and conditions, when it appears that said
dispute causes or may cause a strike; (c) that in the exercise of its powers specified above, the Industrial Relations Tribunal is
not limited, in deciding the dispute, to grant the remedy or remedies requested by the parties to the dispute, but may include
in the order or decision any matter or determination for the purpose of settling the dispute or preventing further industrial or
agricultural disputes.

In this case, there is undoubtedly an industrial willingness. While the company, the Shell company, is not willing to pay its
workers at night higher wages than the outgoing workers, the "NationalLabor Union", to which the Shell workers are affiliated,
demands other types of salaries for the service. nightly - 50% more. This is the dispute, industrial litigation. Now, what has the
Industrial Relations Court done after the conflict was submitted to its jurisdiction? For precisely what is mandated by the
aforementioned Act No. 103 of the Commonwealth, the organic letter of its creation and operation, namely: consider,
investigate and prosecute the dispute, resolve it later in the sense in which it has been resolved, that is, remunerating the work
at night with 50% more than day wages. And this is perfectly legal both within the scope of Article 1 of the aforementioned
Law No. 103 empowering the Industrial Relations Court to decide any dispute over wages and compensation in the manner it
deems reasonable and convenient, as within the framework of the article 4 of the same law that authorizes said court to
prosecute and decide any industrial or agricultural lawsuit or controversy determine the outbreak of a strike or shop to cause
it. But still: what is done by the Industrial Relations Tribunal in the present case is also legal within the framework of article 13
of the same law No. 103, an article that, as has been seen, not only empowers said court to grant the remedy that collect the
parties, but even go further, that is, to grant remedies not expressly requested,

It is evident that with these broad powers the States have proposed to equip the Industrial Relations Tribunal to the maximum
possible utility and effectiveness, making it not a simple academic agency, but truly active, dynamic and efficient - in a word,
the official machinery par excellence in the formidable and thorny task of solving industrial conflicts, yagricolas of a certain
kind, preventing and avoiding in this way those strikes and strikes that so afflict and harm not only companies and workers,
but, in general, all community. In his concurrent opinion issued in the authoritative case of Ang Tibay against Industrial
Relations Tribunal 1 (RG No. 46496), Magistrate Laurel has very aptly expressed the fundamental idea that underlines the
creation of said tribunal, with the following pronouncement:

In Commonwealth Act No. 103, and by it, our government no longer performs the role of mere mediator or intervenor
but that of supreme arbiter . (The italics are ours.).

The appellant argues, however, that while it is true that in case of dispute the Industrial Relations Tribunal has, by virtue of its
organic law, the power to set wages, such power is not absolute, but is subject to certain restrictions and scrapers, provided in
the law commonly known by law on the eight-hour day, Commonwealth Law No. 444, whose relevant articles are fully
transcribed below:

SECTION 1. The legal working day for any person employed by another shall be of not more than eight hours
daily. When the work is not continuous, the time during which the laborer is not working and can leave his working
place and can rest completely shall not be counted.

SEC. 3. Work may be performed beyond eight hours a day in case of current or impending emergencies caused by
serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity in order to prevent loss to
life and property or imminent danger to public safety; or in case urgent work to be performed on the machines,
equipment, or installations in order to avoid a serious loss which the employer would otherwise suffer, or some other
just cause of a similar nature; but in all such cases the laborers and employees shall be entitled to receive
compensation for the overtime work performed at the same rate as their regular wages or salary, plus at least twenty-
five per centum additional.

In case of national emergency the government is empowered to establish rules and regulations for the operation of
the plants and factories and to determine the wages to be paid by the laborers.

SEC. 4. No person, firm, or corporation, business establishment or center of labor shall compel an employee or laborer
to work during Sundays and legal holidays, unless he is paid an additional sum of at least twenty-five per centum of his
regular remuneration: Provided however , That this prohibition shall not apply to public utilities performing some
public service such as supplying gas, electricity, power, water, or providing means of transportation or
communication.

As you wish - argue the lawyers of the appellant - that these articles specify the cases in which the payment of extra or
additional compensation is authorized and are only, namely: (a) in case of overtime or work in excess of the regular hours for
imperious reasons of urgency due to a disaster or accident, or to avoid losses or repair; (b) in case of work on Sundays and
holidays; (c) in case of emergency, and there is nothing that refers to night work; then the order in question is illegal, as it is
not authorized by law. "In the absence - emphasize the appellant's lawyers - legislation authorizing the payment of extra
compensation for work done at night,Expressio unius est exclusio alterius . Where, as in the case at bar, statute expressly
specifies the cases where payment of extra compensation may be demanded, extra compensation may be allowed in those
cases only, and in no others. The provisions of the Commonwealth Act No. 444 can not be enlarged by implication or
otherwise. Expressum facit cessare tacitum .

The argument is wrong. Law No. 444 is not applicable to this case, it being evident that it has a specific purpose, namely: (a)
set the maximum working time in 8 hours; (b) indicate certain exceptional cases in which work may be authorized outside of
said day; (c) provide a bonus, which must not be less than 25% of the regular salary, for overtime or work in excess of 8 hours.

In the case of Manila Electric, applicant-appellant, against The Public Utities Employees' Association, 2Such a restriction
becomes an exception to the general power of the court to set, in cases of dispute, the wages and compensation payable by
employers to employees and workers; and since said article 4 only refers to salary or compensation for work during the days
of Sunday and official holidays, it is obvious that it can not refer to salary or additional compensation for work outside the
eight-hour working day that is usually done from the beginning. It is one thing to work on Sunday days and official parties, and
it is another thing to work at night or outside of the eight-hour day in working days. Applying the legal maximum " the salaries
and compensations that the employers must pay to the employees and workers; and since said article 4 only refers to salary or
compensation for work during the days of Sunday and official holidays, it is obvious that it can not refer to salary or additional
compensation for work outside the eight-hour working day that is usually done from the beginning. It is one thing to work on
Sunday days and official parties, and it is another thing to work at night or outside of the eight-hour day in working
days. Applying the legal maximum " the salaries and compensations that the employers must pay to the employees and
workers; and since said article 4 only refers to salary or compensation for work during the days of Sunday and official
holidays, it is obvious that it can not refer to salary or additional compensation for work outside the eight-hour working day
that is usually done from the beginning. It is one thing to work on Sunday days and official parties, and it is another thing to
work at night or outside of the eight-hour day in working days. Applying the legal maximum " and since said article 4 only
refers to salary or compensation for work during the days of Sunday and official holidays, it is obvious that it can not refer to
salary or additional compensation for work outside the eight-hour working day that is usually done from the beginning. It is
one thing to work on Sunday days and official parties, and it is another thing to work at night or outside of the eight-hour day
in working days. Applying the legal maximum " and since said article 4 only refers to salary or compensation for work during
the days of Sunday and official holidays, it is obvious that it can not refer to salary or additional compensation for work outside
the eight-hour working day that is usually done from the beginning. It is one thing to work on Sunday days and official parties,
and it is another thing to work at night or outside of the eight-hour day in working days. Applying the legal maximum " and
another very different thing is to work at night of out of the day of eight hours in working days. Applying the legal maximum
" and another very different thing is to work at night of out of the day of eight hours in working days. Applying the legal
maximum "expressio unius est exclusio alterius , "it can be argued, without fear of error, that a law that provides an exception
specific to its general provisions, such as additional compensation for work on Sunday and official holidays, excludes any
other, such as compensation additional for work at night in working days. "Another case in which this maxim may almost
invariably be followed that is that of statute which makes certain specific exceptions to its general provisions. Here we safely
assume that all other exceptions were intended to be excluded. "(Wabash R. Co. v. United States, 178 Fed., 5, 101 CCA 133,
Cella Commision Co. vs. Bohlinger, 147 Fed., 419; 78 CCA 467, Kunkalman vs. Gibson, 171 Ind., 503; 84 NE 985; Hering v.
Clement, 133 App. Div., 293; 117 NY, Supp. 747.).

The night job that the Shell company demands from its workers is not simply an overtime, in the sense in which this word is
used in Le No. 444, but it is a full work day , also of 8 hours: only that, instead of being carried out during the day, it is done at
night. In other words, the night work here is not just an extension, overtime or "overtime" of regular day work, but it
is another type of work, absolutely independent of daytime work. That is why there are two shifts: the shift of workers who
work during the day; and the turn of those who work at night. So it is not strange that the legislator has not included this type
of work among the cases of "overtime" indicated in the aforementioned Law No. 444.

The question that, in our opinion, should be determined is whether among the general powers of the Industrial Relations
Court that are admitted without a diploid, it is to consider the day at night as a full working day ; to estimate it as more
burdensomethat the day by day; and consequently, that of providing and ordering that they be remunerated with 50% more
than the regular day wages. Our answer is affirmative: all this is included among the general powers of the Industrial Relations
Court. If this court has, in cases of dispute, the power to fix wages that it considers fair and reasonable for day work, there is no
reason why it should not have the same power with respect to night wages; It is as much work as one as the other. And with
respect to the assessment that night work is heavier and more expensive than day work and, therefore, deserves more
remuneration, there is no reason to revoke or alter it. There is no possible argument against the universal fact that regular,
normal and ordinary work is that of day, and that night work is very exceptional and justified only for certain imperatively
unavoidable reasons. For something humanity has always worked day.

Reasons for hygiene, medicine, morals, culture, sociology, together establish that the work of nocho has many disadvantages,
and when there is no choice but to do so, it is only fair that he reimbursed himself better than ordinarily to compensate for
certain point to the worker of such inconveniences. Undoubtedly, night work not only affects the worker's health in the long
run, but deprives him of certain things that make life relatively pleasant, such as, for example, a complete and uninterrupted
rest and certain moments of comfort , leisure or spiritual and cultural expansion that could have when finishing work in the
afternoon and during the early hours of the night. It is said that the worker can rest during the day after working all night; but
can the day's rest perhaps give the body that tonic and that complete repairing effect that only natural rest at night can
provide? It is also said that some prefer to work at night in our scorching climate, thus avoiding the heat of the day. Much we
fear, nevertheless, that this is better spoken than praticado. We believe that from time immemorial the universal rule is that
man works at night more by irremediable necessity than by pleasurable convenience.

To the vulgar, universal opinion, we must add the expert opinion, the specialist criterion. The opinion of the writers and
experts militates decidedly in favor of the thesis that work at night is harder and more expensive than day labor, considered
for this with marked disgust and consequently compelling the capitalist managements to establish a higher scale of wages as
an incentive to the workers to accept it . You could cite several authorities, but not to extend this paper too much, we chose to
transcribe only a few, namely:

. . . Then, it must be remembered that it is distinctly unphysiological to turn the night into day and deprive the body of
the beneficial effects of sunshine. The human organism revolts against this procedure. Added to artificial lighting are
reversed and unnatural times of eating, resting, and sleeping. Much of the inferiority of nightwork can not be traced to
the failure of the workers to secure proper rest and sleep, by day. Because of inability or lack of opportunity to sleep,
nightworkers often spend their days in performing domestic duties, joining the family in the midday meal, 'tinkering
about the place', watching the baseball game, attending the theater or taking a ride in the car It is not strange that
nightworkers tend to be less efficient than dayworkers and lose more time. . . (The Management of Labor Relations,

Nightwork - Nightwork has gained a measure of prominence in the modern industrial system in connection with
continuous industries, that is, industries in which the nature of the processes makes it necessary to keep machinery
and equipment in constant operation. Even in continuous industries the trend is definitely in the direction of FOUR
shifts of 6 hours each, with provision for an automatic change of shift for all workers at stated intervals. Some
discussion has taken place with regard to the length of the period any workers should be allowed to remain on the
night shift. A weekly change of shifts is common, especially where three or four shifts are in operation; in other cases
the change is made fortnightly or monthly; in still other instances, no alternation is provided for, the workers
remaining on day - or nightwork permanently,

There is a sharp difference of opinion about the relative merits of these systems. Advocates of the weekly change of
shifts contend that the strain of nightwork and the difficulty of getting adequate sleep during the day make it unwise
for workers to remain on the "graveyard" shift for more than a week at a time. Opponents that repeated changes make
it more difficult to settle down to either kind of shift and that after the first week nightwork becomes less trying while
the ability to sleep by day increases. Workers themselves react in various ways to the different systems. This much,
however, is certain: Few persons react favorably to nightwork, whether the shift be continuous or alternating. Outside
of continuous industries, nightwork can scarcely be justified, and, even in these,

Nightwork can not be regarded as desirable, either from the point of view of the employer or the earner. It is
uneconomical unless overhead costs are unusually heavy. Frequently the scale of wages is higher as an inducement to
employees to accept employment on the night shift, and the rate of production is generally lower. (Management of
Labor Relations, by Watkins & Dodd, pp. 522-524; emphasis ours.)

. . . The lack of sunlight tends to produce anemia and tuberculosis and to predispose to other ills. Nightwork brings
increased liability to eyestrain and accident. Serious moral dangers are also likely to result from the necessity of
traveling the streets alone at night, and from the interference with normal home life. From an economic point of view,
moreover, the investigations showed that nightwork was unprofitable, being inferior to day work both in quality and
in quantity. Wherever it had been abolished, in the long run the efficiency of the management and of the workers was
raised. Furthermore, it was found that nightwork laws are a valuable aid in enforcing acts fixing the maximum period
of employment. (Principles of Labor Legislation, by Commons and Andrews, 4th Revised Edition, page 142.)

Special regulation of nightwork for adult men is a comparatively recent development. Some European countries have
adopted laws placing special limitations on hours of nightwork for men, and others prohibit such work except in
continuous processes. (Principles of Labor legislation, 4th Revised Edition by Common & Andrews, page 147.)

Nightwork has almost invariably been viewed with disfavor by students of the problem because of the excessive
strain involved, especially for women and young people, the large amount of time consequent upon exhaustion of the
workers, the additional strain and responsibility upon the executive staff , the tendency of excessively fatigued
workers to "keep going" on artificial stimulants, the general curtailment of time for rest, leisure, and cultural
improvement, and the fact that night workers, although precluded to an extent of the activities of day life, do attempt
to enter into these activities, with resultant impairment of physical well-being. It is not contended, of course, that
nightwork could be abolished in the continuous-process industries, but it is possible to put such industries upon a
three- or four-shifts basis, and to prohibit nightwork for women and children. (Labor's Progress and Problems, Vol. I,
p.464, by Professors Millis and Montgomery.)

Nightwork - Civilized people are beginning to recognize the fact that except in cases of necessity or in periods of great
emergency, nightwork is socially undesirable. Under our modern industrial system, however, nightwork has greatly
aided the production of commodities, and you have offered a significant method of cutting down the ever-increasing
overhead costs of industry. This result has led employers to believe that such work is necessary and profitable. Here
again one meets a conflict of economic and social interests. Under these circumstances it is necessary to discover
whether nightwork has deleterious effects upon the health of laborers and tends to reduce the ultimate supply of
efficient labor. If it can be proved that nightwork affects adversely both the quality and quantity of productive
work, its discontinuance will undoubtedly be sanctioned by employers. From a social point of view, even a relatively
high degree of efficiency in night operations must be forfeited if it is purchased with rapid exhaustion of the health
and energy of the workers. From an economic point of view, nightwork may be necessary if the employer is to meet
the demand for its product, or if it is to maintain its market in the face of increasing competition or mounting variable
production costs.

Industrial experience has shown that the possession of extra-ordinary physical strength and self-control facilitates the
reversal of the ordinary routine of day work and night rest, with the little or no unfavorable effect on health and
efficiency. Unusual vitality and self-control, however, are not common possessions. It has been found that the most
 serious obstacle to a reversal of the routine is the lack of self-discipline. Many night workers enter into the numerous
activities of life that prelude sleep, and continue to attempt to do their work at night. Evidence gathered by the British
Health of Munition Workers' Committee places permanent night workers, if judged on the basis of output or loss of
time, in a very unfavorable positions as compared with day workers.

Systems of nightwork differ. There is the continuous system, in which employees work by night and do not attend the
establishment at all by day, and the discontinuous system, in which the workers change to the day turn at regular
intervals, usually every other week. There are, of course, minor variations in these systems, depending on the nature
of the industry and the wishes of management. Such bodies as the British Health Munition Workers' Committee have
given us valuable conclusions concerning the effect of nightwork. Continuous nightwork is definitely less productive
than the discontinuous system. The output of the continuous day shift does not make up for this loss in production.

There is, moreover, a marked difference between the rates of output of night and day shifts on the discontinuous
plan. In each case investigated the inferiority of night labor was definitely established. This inferiority is evidently the
result of the night worker's failure to secure proper amounts of sleep and rest during the day. The system of
continuous shifts, especially for women, is regarded by all investigators as undesirable. Women on continuous
nightwork are likely to perform domestic duties, and this added strain undoubtedly accounts for the poorer results of
their industrial activities.

The case against nightwork, then, may be said to rest upon several grounds. In the first place, there are the remotely
injurious effects of permanent nightwork manifested in the later years of the worker's life. Of more immediate
importance to the average worker is the disarrangement of his social life, including the recreational activities of his
leisure hours and the normal associations of normal family relations. From an economic point of view, nightwork is
discouraged because of its adverse effect upon efficiency and output. A moral argument against nightwork in the case
of women is that the night shift forces the workers to go to and from the factory in darkness. Recent experiences of
industrial nations have added much to the evidence against the continuation of nightwork, except in extraordinary
circumstances and unavoidable emergencies. The immediate prohibition of nightwork for all laborers is hardly
practicable; Its discontinuance in the case of women employees is unquestionably desirable. 'The night was made for
rest and not for work' is a common saying among wage-earning people, and many of them dream of an industrial
order in which there will be no night shift. (Labor Problems, 3rd Edition, pp. 325-328, by Watkins & Dodd.).

In merits of the above, the recourse of certiorari filed is denied and the ruling of the Industrial Claims Court is confirmed, with
costs borne by the appellant. This is how it is ordered.

Paras, Pres. Actino, Feria, Pablo, Perfecto, Bengzon, Padilla and Tuason, MM., Are satisfied.

G.R. No. 117460 January 6, 1997

REPUBLIC PLANTERS BANK now known as PNB-REPUBLIC BANK, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and ANTONIO G. SANTOS, respondents.

BELLOSILLO, J.:

ANTONIO G. SANTOS was employed by Republic Planters Bank, now known as PNB-Republic Bank (PNB-RB), for thirty-one
(31) years and fifteen (15) days occupying various positions. At the time of his retirement on 31 May 1990 he was a
Department Manager with a monthly salary of P8,965.00 and accumulated leave credits of two hundred and seventy-two
(272) days. He received a gratuity pay of P434,468.52 out of which P20,615.62 was deducted for taxes due.

Santos filed the instant suit for underpayment of gratuity pay, non-payment of accumulated sick and vacation leaves, mid-year
and year-end bonuses, financial assistance, at the same time claiming damages and attorney's fees.

The Labor Arbiter found for complainant Santos and this finding was affirmed by the National Labor Relations Commission
(NLRC) on appeal.

PNB-RB alleges in this petition that the resolution of NLRC is contrary to the evidence and existing jurisprudence; that NLRC
gravely abused its discretion when it upheld the order of the Labor Arbiter awarding P661,210.63 to Santos; and, that the
award to Santos of mid-year and year-end bonuses, moral and exemplary damages and attorney's fees has no legal basis.
Petitioner argues that Santos is not entitled to the award as he signed a Release, Waiver and Quitclaim therefor when he
received his gratuity pay of P434,468.52.

We are not unaware that a quitclaim by an employee in favor of his employer amounts to a valid and binding compromise
agreement between them. 1 An agreement voluntarily entered into which represents a reasonable settlement is binding on the
parties and may not later be disowned simply because of a change of mind. 2

On the other hand, we are not also unmindful of the principle that quitclaims are ineffective to bar recovery for the full
measure of the worker's rights 3 and that acceptance thereof does not amount to estoppel. 4 Generally, quitclaims by laborers
are frowned upon as contrary to public policy. 5 And the fact that the consideration given in exchange thereof was very much
less than the amount claimed renders the quitclaim null and void. 6 In the instant case, the total amount claimed by Santos is
P908,022.65 of which only P434,468.52 was received by him. Considering that the Release, Waiver and Quitclaim was signed
by Santos under protest as found by the Labor Arbiter and the NLRC, and the difference between the amount claimed and that
paid cannot in any way be considered negligible, we deem it proper to recompute and determine the exact amount of the
retirement benefits due private respondent. We perceive the waiver under the facts of the case to dangerously encroach on the
entrenched domain of public policy.

Petitioner invokes Periquet v. National Labor Relations Commission 7 to thwart private respondent's claim. Unfortunately, the
case does not provide the desired relief. In Periquet, the consideration for the quitclaim was found to be credible and
reasonable. In the case before us, we are unable to make such finding for the difference involved is considerably big and
substantial. The total of the claim is P908,022.65. Deducting therefrom the amount of P434,468.52 already received by
respondent Santos leaves a difference of P473,554.13 which is even more than what he had been given.

PNB-RB avers that the NLRC gravely abused its discretion when it computed the gratuity pay of Santos at P661,210.63 based
on the salary rate of the next higher rank on the theory that he acquired a vested right over it pursuant to the 1971-1973
Collective Bargaining Agreement (CBA). Petitioner posits that as the CBA had long expired it could no longer be used as basis
in computing the gratuity pay of its retiring officers; instead, the computation should be based on the practice and policy of the
bank effective at the time of the employee's retirement.

We cannot agree. Not so long ago we resolved exactly the same issues in Republic Planters Bank v. National Labor Relations
Commissions 8 which, coincidentally, emanated from a similar set of facts. In that case, Macario de Guzman resigned from PNB-
RB on 3 June 1985. The following day he filed a complaint with the Department of Labor and Employment for underpayment
of gratuity pay, underpayment of unused leaves and non-payment of accrued leave credits. De Guzman bewailed the erroneous
computation of his gratuity pay and the cash value of his accumulated leave credits, and maintained that it should have been
based on the provisions of the 1971-1973 CBA instead of the 1982-1985 CBA entered into between PNB-RB and its rank-and-
file employees. In finding for de Guzman we ruled —

Prior to private respondent's resignation, there were other managerial employees who resigned and/or
retired from petitioner's employ who received their corresponding gratuity benefits and the cash value of
their accumulated leave credits pursuant to the provisions of the old CBA of 1971-73 despite its expiration in
1976. Among them were Simplicio Manalo and Miguel Calimbas who resigned on 15 March 1977 and 15 July
1978, respectively. With such a practice and policy, petitioner cannot refuse to pay private respondent his
gratuity benefits under the old CBA. Under Section 14(a), Rule 1 of the Rules and Regulations Implementing
Book VI of the Labor Code, it is provided:

Sec. 14. Retirement Benefits. — (a) An employee who is retired pursuant to a bonafide
retirement plan or in accordance with the applicable individual or collective agreement or
established employer policy shall be entitled to all the retirement benefits provided therein . . .
— (Emphasis supplied).

The foregoing provision explicitly states that a company practice or policy is a labor standard in determining
the retirement benefits of its employees.

The petitioner's theory that the computation of the benefits of private respondent should be based on the
1982-85 CBA which was the one enforced at the time of his resignation is untenable. Said CBA was entered
into by petitioner with its rank-and-file employees. Private respondent is a managerial employee who, by
express provision of law, is excepted from the coverage of the aforesaid contract. Private respondent was not
a party thereto and could not be bound thereby.

Since no new CBA had been entered into between the managerial employees and petitioner upon the
expiration of the said 1971-73 CBA, private respondent has acquired a vested right to the said established
policy of petitioner in applying the 1971-73 CBA to retiring or resigning executives of managerial employees.
Such right cannot be curtailed or diminished. 9

We maintain the same dictum in the case before us. PNB-RB insists on disowning any practice or policy of granting gratuity
pay to its retiring officers based on the salary rate of the next higher rank. It admitted however that it granted gratuity pay on
the basis of the salary rate of the next higher rank but only in the case of Simplicio Manalo. As to other instances when it
granted gratuity pay based on the salary rate of the next higher rank, PNB-RB explains that those were not voluntarily done
but were in lawful compliance with court orders.

PNB-RB asserts that our findings in the Republic Planters Bank v. National Labor Relations Commission 10 were definitely
erroneous as they
were contrary to law and the facts of the case. Thus, the error should not be perpetuated. 11

A punctilious perusal of the records leads us to the same conclusion, i.e., that PNB-RB has adopted the policy of granting
gratuity benefits to its retiring officers based on the salary rate of the next higher rank. It continued to adopt this practice even
after the expiration of the 1971-1973 CBA. The grant was consistent and deliberate although petitioner knew fully well that it
was not required to give the benefits after the expiration of the 1971-1973 CBA. Under these circumstances, the granting of the
gratuity pay on the basis of the salary rate of the rank next higher may be deemed to have ripened into company practice or
policy which can no longer be peremptorily withdrawn. 12 Any benefit and supplement being enjoyed by the employees
cannot be reduced, diminished, discontinued or eliminated by the employer by virtue of Sec. 10 of the Rules and Regulations
Implementing P.D. No. 851 and Art. 100 of the Labor Code which prohibit the diminution or elimination by the employer of the
employees' existing benefits. 13 Leave credits should likewise be computed based on the upgraded salary rate, i.e., the salary
rate of the next higher rank in conformity with the provisions of the 1971-1973 CBA which in part read —

Sec. 14. The Bank agrees to grant to each regular supervisor employee upon his retirement, resignation or
separation without cause after July 1, 1969, the following benefits:

a) Gratuity pay equivalent to one (1) month salary plus the corresponding living allowance of the rank next
higher than the rank of such supervisor at the time of his retirement, resignation or separation without cause,
for every year of service in the Bank, provided that the said supervisor has at least five (5) years of
continuous service with the Bank.

b) The cash equivalent of the accumulated sick and vacation leaves since the time of his initial employment
with the Bank. 14

Under this section, only the gratuity pay is expressly entitled to be computed based on the salary rate of the rank next higher.
This however should not be interpreted in isolation. In this instance, it may be worth to look into the reasons which motivated
the parties to enter into the above agreement. The conversion of leave credits into their cash equivalent is aimed primarily to
encourage workers to work continuously and with dedication for the company. Companies offer incentives, such as the
conversion of the accumulated leave credits into their cash equivalent, to lure employees to stay with the company. Leave
credits are normally converted into their cash equivalent based on the last prevailing salary received by the employee.
Considering all these, the accumulated leave credits should be converted based on the upgraded salary of the retiree, which is
the salary rate of the rank next higher.

PNB-RB avers that it has sufficiently established that the salary of an officer is pegged to a minimum or maximum depending
on his performance appraisal in accordance with the Executive Compensation Salary Structure 15(ECSS) effective 1 May 1987.
Since Santos' latest performance rating was only satisfactory, his gratuity pay should be based on the minimum and not on the
maximum amount of the rate of the salary of the rank next higher. In this regard, we quote with approval the Comment of the
Solicitor General that —

Nothing in the provisions of the 1971 CBA from which emanated the one rank higher policy indicates a
minimum or maximum range of the next higher rank. Instead, what is provided is an unqualified one rank
higher concept. Petitioner is, therefore, precluded from drawing a distinction where none has been stated in
the contract. Besides, assuming that an ambiguity does exist, the same must be resolved in the light of Article
1702 of the Civil Code that: In case of doubt, the labor legislation and all labor contracts shall be construed in
favor of the safety and decent living for the laborer. Such should be liberally construed in favor of the persons
intended to be benefited thereby.

Moreover, petitioner, by invoking the salary structure and criteria for promotion as basis for determining the
amount of gratuity has confused the two distinct concepts of gratuity and salary. Gratuity pay, unlike salary, is
paid to the beneficiary for the past services or favor rendered purely out of the generosity of the giver or
grantor. Gratuity, therefore, is not intended to pay a worker for actual services rendered or for actual
performance. It is a money benefit or bounty given to the worker, the purpose of which is to reward
employees who have rendered satisfactory service to the company. Salary, on the other hand, is a part of
labor standard law based on the actual amount of work rendered or the number of days worked over the
period of years. Hence, petitioner's attempt to apply the salary structure to determine gratuity would
eradicate the very essence of a gratuity award, and make it partake of the character of a wage or salary given
on the basis of actual work or performance. Such
was never the intendment of the law and would run counter to essential social justice. 16

Additionally, computing the gratuity pay based on the performance rating of the retiring officer is a practice that is very likely
susceptible to abuse as he will be placed at the mercy of the members of the performance appraisal committee.

Petitioner argues that the claim of Santos for bonuses corresponding to the years 1985, 1986 and mid-year of 1987 has
already prescribed. This is correct. Article 291 of the Labor Code states in part —

All money claims arising from employer-employee relations accruing during the effectivity of this Code shall
be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever
barred.

Since Santos filed his complaint only on 12 July 1990, his claim for 1985 (mid-year and year-end), 1986 (mid-year and year-
end), and 1987 (mid-year) bonuses already prescribed. As regards bonuses for 1987 (year-end), 1988 (mid-year and year-
end), 1989 (mid-year and year-end), and 1990 (mid-year), we agree with petitioner that these should be based on the existing
salary rate at the time of their accrual. The record shows however that in 1988 Santos was found guilty of an administrative
charge. Hence, in consonance with existing company policy, the 1988 (mid-year and year-end) bonus should be forfeited in
favor of the Bank. 17

As regards the award of moral and exemplary damages, as well as attorney's fees, we quote with approval the Comment of
private respondent thus—
 On the matter of moral and exemplary damages, the same is a must considering that petitioner is guilty of bad
faith by its continued refusal to pay his claims despite the final rulings of the Supreme Court in similar other
cases earlier cited. By refusing to abide by the doctrinal pronouncements of the Highest Tribunal, petitioner
has shown to be anti-labor. This stubborn attitude is not only contemptible but also contrary to morals, good
customs and public policy. Regardless of its own thinking on the issues presented vis-a-vis the judicial
pronouncements already made, petitioner is duty-bound to respect the Supreme Court decisions which have
become part of the law of the land.

Consequently, private respondent had suffered mental anguish and sleepless nights and therefore, should be
entitled to moral damages. And to serve as example for the public good so that others similarly inclined could
be dissuaded from adopting the same detestable practice, petitioner should also be sanctioned in the form of
exemplary damages.

In addition, petitioner had continuously and openly declared that it will continuously deny the existence of
said policy as it was based on erroneous assumption of facts, and private respondent is not at all surprised
that petitioner has been throwing all kinds of blockade or obstacle, so as to stop a snowball application of the
Supreme Court decision. Such act of the petitioner of arrogantly defying a well-laid down jurisprudence on
the issue at hand (resulted) to the great prejudice of private respondent's interest. The delay on the part of
the petitioner to rectify its error and grant private respondent what is really due him must have certainly
caused undue damages on the part of the latter. Such defiant attitude does not really set good example on
how one should abide by the decision of the highest tribunal of the land.

xxx xxx xxx

Private respondent has been dragged into this case because petitioner refuses and arrogantly defies the
doctrine of stare decisis that had long set in, compelling private respondent to litigate. In this regard, private
respondent's award for attorney's fees is proper. 18

ACCORDINGLY, the 30 June 1993 Decision of the Labor Arbiter and the 30 August 1994 Resolution of the National Labor
Relations Commission are AFFIRMED with the modification that petitioner PNB-REPUBLIC BANK is ordered to pay private
respondent Antonio G. Santos the amount of P423,661.00, less the applicable taxes, computed as follows:

Basic gratuity Day:

Applicable monthly rate (P15,840.00)

x length of service (31 years and
15 days) =

P15,840.00 x 31 years P491,040.00

P15,840.00 x 15/251 days 946.00
—————

P491,986.00

Leave credits:

P15,840 x 272 x 12/251 205,983.00

Accrued Bonuses:

1987-year-end only P1,300.00 19

1988-forfeited (due adm. case)
1989-mid year/year-end 11,380.00 20
1990-mid-year only 8,965.00 21
———————

21,645.00
—————
P719,614.00

Less: Gratuity already received 434,468.00

————
Balance P285,146.00
Add: Moral damages 50,000.00
Exemplary damages 50,000.00
Attorney's fees 38,515.00
————

Total P423,661.00
=========
SO ORDERED.

G.R. No. 124055 June 8, 2000

ROLANDO E. ESCARIO, NESTOR ANDRES, CESAR AMPER, LORETO BALDEMOR, EDUARDO BOLONIA, ROMEO E.
BOLONIA, ANICETO CADESIM, JOEL CATAPANG, NESTOR DELA CRUZ, EDUARDO DUNGO ESCARIO REY, ELIZALDE
ESTASIO, CAROLINO M. FABIAN, RENATO JANER, EMER B. LIQUIGAN, ALEJANDRO MABAWAD, FERNANDO M.
MAGTIBAY, DOMINADOR B. MALLILLIN, NOEL B. MANILA, VIRGILIO A. MANIO, ROMEO M. MENDOZA, TIMOTEO
NOTARION, FREDERICK RAMOS, JOSEPH REYES, JESSIE SEVILLA, NOEL STO. DOMINGO, DODJIE TAJONERA, JOSELITO
TIONLOC, ARNEL UMALI, MAURLIE C. VIBAR, ROLANDO ZALDUA, RODOLFO TUAZON, TEODORO LUGADA, MAURING
MANUEL, MARCIANO VERGARA, JR., ARMANDO IBASCO, CAYETANO IBASCO, LEONILO MEDINA, JOSELITO ODO,
MELCHOR BUELA, GOMER GOMEZ, HENRY PONCE, RAMON ORTIZ, JR., ANTONIO MIJARES, JR., MARIO DIZER,
REYNANTE PEJO, ARNALDO RAFAEL, NELSON BERUELA, AUGUSTO RAMOS, RODOLFO VALENTIN, ANTONIO CACAM,
VERNON VELASQUEZ, NORMAN VALLO, ALEJANDRO ORTIZ, ROSANO VALLO, ANDREW ESPINOSA, EDGAR CABARDO,
FIDELES REYES, EDGARDO FRANCISCO, FERNANDO VILLARUEL, LEOPOLDO OLEGARIO, OSCAR SORIANO, GARY RELOS,
DANTE IRANZO, RONALDO BACOLOR, RONALD ESGUERA, VICTOR ALVAREZ, JOSE MARCELO, DANTE ESTRELLADO,
MELQUIADES ANGELES, GREGORIO TALABONG, ALBERT BALAO, ALBERT CANLAS, CAMILO VELASCO, PONTINO
CHRISTOPHER, WELFREDO RAMOS, REYNALDO RODRIGUEZ, RAZ GARIZALDE, MIGUEL TUAZON, ROBERTO SANTOS,
AND RICARDO MORTEL, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION, CALIFORNIA MANUFACTURING CO. INC. AND DONNA LOUISE
ADVERTISING AND MARKETING ASSOCIATES INCORPORATED, respondents.

DECISION

KAPUNAN, J.:

Before this Court is a petition for certiorari under Rule 65, which seeks to annul and set aside the decision, promulgated on 10
May 1995, of the National Labor Relations Commission (NLRC). The assailed decision reversed the decision of the Labor
Arbiter, and ruled that the petitioners are employees of Donna Louise Advertising and Marketing Associates, Inc. and ordered
the reinstatement of petitioners and the payment of backwages.

Private respondent California Marketing Co. Inc. (CMC) is a domestic corporation principally engaged in the manufacturing of
food products and distribution of such products to wholesalers and retailers. Private respondent Donna Louise Advertising
and Marketing Associates, Inc. (D.L. Admark) is a duly registered promotional firm.

Petitioners worked as merchandisers for the products of CMC. Their services were terminated on 16 March 1992.

The parties presented conflicting versions of the facts.

Petitioners allege that they were employed by CMC as merchandisers. Among the tasks assigned to them were the
withdrawing of stocks from the warehouse, the fixing of prices, price-tagging, displaying of merchandise, and the inventory of
stocks. These were done under the control, management and supervision of CMC. The materials and equipment necessary in
the performance of their job, such as price markers, gun taggers, toys, pentel pen, streamers and posters were provided by
CMC. Their salaries were being paid by CMC. According to petitioners, the hiring, control and supervision of the workers and
the payment of salaries, were all coursed by CMC through its agent D.L. Admark in order for CMC to avoid its liability under the
law.

On 7 February 1992, petitioners filed a case against CMC before the Labor Arbiter for the regularization of their employment
status. During the pendency of the case before the Labor Arbiter, D.L. Admark sent to petitioners notice of termination of their
employment effective 16 March 1992. Hence, their complaint was amended so as to include illegal dismissal as cause of action.
Thereafter, twenty-seven more persons joined as complainants. CMC filed a motion to implead as party-defendant D. L.
Admark and at the same time the latter filed a motion to intervene. Both motions were granted.

CMC, on the other hand, denied the existence of an employer-employee relationship between petitioner and itself. Rather, CMC
contended that it is D.L. Admark who is the employer of the petitioners. While CMC is engaged in the manufacturing of food
products and distribution of such to wholesalers and retailers, it is not allowed by law to engage in retail or direct sales to end
consumers. It, however, hired independent job contractors such as D.L. Admark, to provide the necessary promotional
activities for its product lines.

For its part, D.L. Admark asserted that it is the employer of the petitioners. Its primary purpose is to carry on the business of
advertising, promotion and publicity, the sales and merchandising of goods and services and conduct survey and opinion polls.
As an independent contractor it serves several clients among which include Purefoods, Corona Supply, Firstbrand, Splash
Cosmetics and herein private respondent California Marketing.

On 29 July 1994, the Labor Arbiter rendered a decision finding that petitioners are the employees of CMC as they were
engaged in activities that are necessary and desirable in the usual business or trade of CMC.1 In justifying its ruling, the Labor
Arbiter cited the case of Tabas vs. CMC which, likewise, involved private respondent CMC. In the Tabas case, this Court ruled
that therein petitioner merchandisers were employees of CMC, to wit:
There is no doubt that in the case at bar, Livi performs "manpower services," meaning to say, it contracts out labor in favor of
clients. We hold that it is one not withstanding its vehement claims to the contrary and not- withstanding its vehement claims
to the contrary, and notwithstanding the provision of the contract that it is "an independent contractor." The nature of one’s
business is not determined by self-serving appellations one attaches thereto but by the tests provided by statute and
prevailing case law. The bare fact that Livi maintains a separate line of business does not extinguish the equal fact that it has
provided California with workers to pursue the latter’s own business. In this connection, we do not agree that the petitioner
has been made to perform activities "which are not directly related to the general business of manufacturing," California’s
purported "principal operation activity. The petitioners had been charged with merchandising [sic] promotion or sale of the
products of [California] in the different sales outlets in Metro Manila including task and occational [sic] price tagging," an
activity that is doubtless, an integral part of the manufacturing business. It is not, then, as if Livi had served as its (California’s)
promotions or sales arm or agent, or otherwise rendered a piece of work it (California) could not itself have done; Livi as a
placement agency, had simply supplied it with manpower necessary to carry out its (California’s) merchandising activities,
using its (California’s) premises and equipment.2

On appeal, the NLRC set aside the decision of the Labor Arbiter. It ruled that no employer-employee relationship existed
between the petitioners and CMC. It, likewise, held that D.L. Admark is a legitimate independent contractor, hence, the
employer of the petitioners. Finding no valid grounds existed for the dismissal of the petitioners by D.L. Admark, it ordered
their reinstatement. The dispositive portion of the decision reads:

WHEREFORE, premises considered, the appealed judgment is modified. Intervenor DL ADMARK is ordered to reinstate the
eighty one (81) complainants mentioned in the appealed decision to their former positions with backwages from March 16,
1992 until they are actually reinstated. The award of attorney’s fees equivalent to ten (10%) of the award is deleted for lack of
basis.3

Petitioners filed a motion for reconsideration but the same was denied by the NLRC for lack of merit. 4

Hence, this petition.

In the main, the issue brought to fore is whether petitioners are employees of CMC or D.L. Admark. In resolving this, it is
necessary to determine whether D.L. Admark is a labor-only contractor or an independent contractor.

Petitioners are of the position that D.L. Admark is a labor-only contractor and cites this Court’s ruling in the case
of Tabas, which they claim is applicable to the case at bar for the following reasons:

1. The petitioners are merchandisers and the petitioners in the Tabas case are also merchandisers who have the same
nature of work.

2. The respondent in this case is California Manufacturing Co. Inc. while respondent in the Tabas case is the same
California Manufacturing Co. Inc.

3. The agency in the Tabas case is Livi Manpower Services. In this case, there are at least, three (3) agencies namely:
the same Livi Manpower Services; the Rank Manpower Services and D.L. Admark whose participation is to give and
pay the salaries of the petitioners and that the money came from the respondent CMC as in the Tabas case.lawphi1

4. The supervision, management and/or control rest upon respondent California Manufacturing Co. Inc. as found by
the Honorable Labor Arbiter which is also, true in the Tabas Case.5

We cannot sustain the petition.

Petitioners’ reliance on the Tabas case is misplaced. In said case, we ruled that therein contractor Livi Manpower Services was
a mere placement agency and had simply supplied herein petitioner with the manpower necessary to carry out the company’s
merchandising activity. We, however, further stated that :

It would have been different, we believe, had Livi been discretely a promotions firm, and that California had hired it to perform
the latter’s merchandising activities. For then, Livi would have been truly the employer of its employees and California, its
client. x x x.6

In other words, CMC can validly farm out its merchandising activities to a legitimate independent contractor.

There is labor-only contracting when the contractor or sub-contractor merely recruits, supplies or places workers to perform
a job, work or service for a principal. In labor-only contracting, the following elements are present:

(a) The person supplying workers to an employer does not have substantial capital or investment in the form of tools,
equipment, machineries, work premises, among others; and

(b) The workers recruited and placed by such person are performing activities which are directly related to the
principal business of the employer. 7

In contrast, there is permissible job contracting when a principal agrees to put out or farm out with a contractor or a
subcontractor the performance or completion of a specific job, work or service within a definite or predetermined period,
regardless of whether such job or work or service is to be performed or completed within or outside the premises of the
principal. In this arrangement, the following conditions must concur:

(a)....The contractor carries on a distinct and independent business and undertakes the contract work on his account
under his own responsibility according to his own manner and method, free from the control and direction of his
employer or principal in all matters connected with the performance of his work except as to the results thereof; and

(b)....The contractor has substantial capital or investment in the form of tools, equipment, machineries (sic), work
premises, and other materials which are necessary in the conduct of his business. 8

In the recent case of Alexander Vinoya vs. NLRC et al.,9 this Court ruled that in order to be considered an independent
contractor it is not enough to show substantial capitalization or investment in the form of tools, equipment, machinery and
work premises. In addition, the following factors need be considered: (a) whether the contractor is carrying on an
independent business; (b) the nature and extent of the work; (c) the skill required; (d) the term and duration of the
relationship; (e) the right to assign the performance of specified pieces of work; (f) the control and supervision of the workers;
(g) the power of the employer with respect to the hiring, firing and payment of workers of the contractor; (h) the control of the
premises; (i) the duty to supply premises, tools, appliances, materials, and labor; and (j) the mode, manner and terms of
payment.10

Based on the foregoing criterion, we find that D.L. Admark is a legitimate independent contractor.

Among the circumstances that tend to establish the status of D.L. Admark as a legitimate job contractor are:

1) The SEC registration certificate of D.L. Admark states that it is a firm engaged in promotional, advertising,
marketing and merchandising activities.

2) The service contract between CMC and D.L. Admark clearly provides that the agreement is for the supply of sales
promoting merchandising services rather than one of manpower placement.11

3) D.L. Admark was actually engaged in several activities, such as advertising, publication, promotions, marketing and
merchandising. It had several merchandising contracts with companies like Purefoods, Corona Supply, Nabisco
Biscuits, and Licron. It was likewise engaged in the publication business as evidenced by it magazine the
"Phenomenon."12

4) It had its own capital assets to carry out its promotion business. It then had current assets amounting to P6 million
and is therefore a highly capitalized venture.13 It had an authorized capital stock of P500,000.00. It owned several
motor vehicles and other tools, materials and equipment to service its clients. It paid rentals of ₱30,020 for the office
space it occupied.

Moreover, by applying the four-fold test used in determining employer-employee relationship, the status of D.L. Admark as the
true employer of petitioners is further established. The elements of this test are (1) the selection and engagement of employee;
(2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee’s conduct.14

As regards the first element, petitioners themselves admitted that they were selected and hired by D.L. Admark. 15

As to the second element, the NLRC noted that D.L. Admark was able to present in evidence the payroll of petitioners, sample
SSS contribution forms filed and submitted by D.L. Admark to the SSS, and the application for employment by R. de los Reyes,
all tending to show that D.L. Admark was paying for the petitioners’ salaries. In contrast, petitioners did not submit an iota of
evidence that it was CMC who paid for their salaries. The fact that the agreement between CMC and D.L. Admark contains the
billing rate and cost breakdown of payment for core merchandisers and coordinators does not in any way establish that it was
CMC who was paying for their salaries. As correctly pointed out by both CMC 16 and the Office of the Solicitor General,17 such
cost breakdown is a standard content of service contracts designed to insure that under the contract, employees of the job
contractor will receive benefits mandated by law.

Neither did the petitioners prove the existence of the third element. Again petitioners admitted that it was D.L. Admark who
terminated their employment.18

To prove the fourth and most important element of control, petitioners presented the memoranda of CMC’s sales and
promotions manager. The Labor Arbiter found that these memos "indubitably show that the complainants were under the
supervision and control of the CMC people."19 However, as correctly pointed out by the NLRC, a careful scrutiny of the
documents adverted to, will reveal that nothing therein would remotely suggest that CMC was supervising and controlling the
work of the petitioners:

x x x The memorandums (Exhibit "B") were addressed to the store or grocery owners telling them about the forthcoming sales
promotions of CMC products. While in one of the memorandums a statement is made that "our merchandisers and
demonstrators will be assigned to pack the premium with your stocks in the shelves x x x, yet it does not necessarily mean to
refer to the complainants, as they claim, since CMC has also regular merchandisers and demonstrators. It would be different if
in the memorandums were sent or given to the complainants and their duties or roles in the said sales campaign are therein
defined. It is also noted that in one of the memorandums it was addressed to: "All regular merchandisers/demonstrators." x x
x we are not convinced that the documents sufficiently prove employer-employee relationship between complainants and
respondents CMC.20

The Office of the Solicitor General, likewise, notes that the documents fail to show anything that would remotely suggest
control and supervision exercised by CMC over petitioners on the matter on how they should perform their work. The
memoranda were addressed either to the store owners or "regular" merchandisers and demonstrators of CMC. Thus,
petitioners, who filed a complaint for regularization against respondent CMC, thereby, conceding that they are not regular
employees of the latter, cannot validly claim to be the ones referred to in said memos. 21

Having proven the existence of an employer-employee relationship between D.L. Admark and petitioners, it is no longer
relevant to determine whether the activities performed by the latter are necessary or desirable to the usual business or trade
of CMC.

On the issue of illegal dismissal, we agree with the findings of the NLRC that D.L. Admark "admits having dismissed the
petitioners for allegedly disowning and rejecting them as their employer." Undoubtedly, the reason given is not just cause to
terminate petitioners.22 D.L. Admark’s belated claim that the petitioners were not terminated but simply did not report to
work23 is not supported by the evidence on record. Moreover, there is no showing that due process was afforded the
petitioners.

IN VIEW OF THE FOREGOING, finding no grave abuse of discretion on the part of the National Labor Relations Commission,
the assailed decision is AFFIRMED in toto.

SO ORDERED.

G.R. No. 135981 January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the "battered woman
syndrome" (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not entitled to complete
exoneration because there was no unlawful aggression -- no immediate and unexpected attack on her by her batterer-husband
at the time she shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that
broke down her psychological resistance and self-control. This "psychological paralysis" she suffered diminished her will
power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful
as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her
batterer-spouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the
aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn
child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate
Sentence Law, she may now apply for and be released from custody on parole, because she has already served the minimum
period of her penalty while under detention during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision1 of the Regional Trial Court (RTC) of Ormoc City
(Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal
portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro,
GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the Revised Penal Code as
restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of
mitigating circumstance, hereby sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos
(P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine
currency as moral damages."2
The Information3 charged appellant with parricide as follows:

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with
treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and
wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had
provided herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and
tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the
brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of the dura
and meningeal vessels producing severe intracranial hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."4

With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on March 3, 1997.6 In due course, she
was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with
the parents of Ben in their house at Isabel, Leyte. For a time, Ben's younger brother, Alex, and his wife lived with them
too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel,
Leyte where they lived with their two children, namely: John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two
(2) bottles of beer before heading home. Arturo would pass Ben's house before reaching his. When they arrived at the
house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while
Arturo went to a store across it, waiting until 9:00 in the evening for the masiaorunner to place a bet. Arturo did not
see appellant arrive but on his way home passing the side of the Genosas' rented house, he heard her say 'I won't
hesitate to kill you' to which Ben replied 'Why kill me when I am innocent?' That was the last time Arturo saw Ben
alive. Arturo also noticed that since then, the Genosas' rented house appeared uninhabited and was always closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters
from her house, to look after her pig because she was going to Cebu for a pregnancy check-up. Appellant likewise
asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw
appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and taking her
children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas' rented house.
Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that
appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being
rented by Ben and appellant. Steban went there to find out the cause of the stench but the house was locked from the
inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw.
He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it.
Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the
lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the
back of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his son's
misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte,
received a report regarding the foul smell at the Genosas' rented house. Together with SPO1 Millares, SPO1 Colon, and
Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where they found the dead
body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on.
 SPO3 Acodesin found in one corner at the side of an aparadora metal pipe about two (2) meters from where Ben was,
leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half
(1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the
house before the postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal
health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to
three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings
quoted in the Information for parricide later filed against appellant. She concluded that the cause of Ben's death was
'cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital
[bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried
that her husband who was not home yet might have gone gambling since it was a payday. With her cousin Ecel Araño,
appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found
Ben drunk upon their return at the Genosas' house. Ecel went home despite appellant's request for her to sleep in
their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him
and instead attended to their children who were doing their homework. Apparently disappointed with her reaction,
Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep her from
watching television. According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of
her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point,
appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben
allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and
told her 'You might as well be killed so nobody would nag me.' Appellant testified that she was aware that there was a
gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet.
She however, 'smashed' the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then
'smashed' Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside
the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly 'distorted' the
drawer where the gun was and shot Ben. He did not die on the spot, though, but in the bedroom." 7 (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had
graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business Administration, and was
working, at the time of her husband's death, as a Secretary to the Port Managers in Ormoc City. The couple had three
(3) children: John Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were
classmates; and they were third degree cousins. Both sets of parents were against their relationship, but Ben was
persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant partner
at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's brother, Alex, in Isabel,
Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But apparently, soon thereafter, the couple would
quarrel often and their fights would become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He
said that when Ben and Marivic quarreled, generally when Ben would come home drunk, Marivic would inflict injuries
on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as
his left hand was covered with blood. Marivic left the house but after a week, she returned apparently having asked
for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to
Ben's aid again and saw blood from Ben's forehead and Marivic holding an empty bottle. Ben and Marivic reconciled
after Marivic had apparently again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic married in '1986 or 1985
more or less here in Fatima, Ormoc City.' She said as the marriage went along, Marivic became 'already very
demanding. Mrs. Iluminada Genosa said that after the birth of Marivic's two sons, there were 'three (3)
misunderstandings.' The first was when Marivic stabbed Ben with a table knife through his left arm; the second
incident was on November 15, 1994, when Marivic struck Ben on the forehead 'using a sharp instrument until the eye
was also affected. It was wounded and also the ear' and her husband went to Ben to help; and the third incident was in
1995 when the couple had already transferred to the house in Bilwang and she saw that Ben's hand was plastered as
'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.
"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we collected our salary, we went to
the cock-fighting place of ISCO.' They stayed there for three (3) hours, after which they went to 'Uniloks' and drank
beer – allegedly only two (2) bottles each. After drinking they bought barbeque and went to the Genosa
residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the road to wait 'for
the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I
was waiting for the ushers and runners so that I can place my bet.' On his way home at about 9:00 in the evening, he
heard the Genosas arguing. They were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to
feed his fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him was Marivic
saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am innocent.' Basobas thought they
were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he
and Ben were always at the cockpits every Saturday and Sunday. He claims that he once told Ben 'before when he was
stricken with a bottle by Marivic Genosa' that he should leave her and that Ben would always take her back after she
would leave him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said
Ben 'even had a wound' on the right forehead. He had known the couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said
he provoked her, he would slap her, sometimes he would pin her down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but Ben would follow her and
seek her out, promising to change and would ask for her forgiveness. She said after she would be beaten, she would
seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted
upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was drunk, at
least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she
received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he
overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open jalousies, he saw
the spouses 'grappling with each other'. Ben had Marivic in a choke hold. He did not do anything, but had come
voluntarily to testify. (Please note this was the same night as that testified to by Arturo Busabos.8 )

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor
Marivic shouting on the night of November 15, 1995. He peeped through the window of his hut which is located
beside the Genosa house and saw 'the spouses grappling with each other then Ben Genosa was holding with his both
hands the neck of the accused, Marivic Genosa'. He said after a while, Marivic was able to extricate he[r]self and enter
the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00 the
next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was
located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living together for 13 or 14
years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then would
use the money to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but would be
pacified 'if somebody would come.' He testified that while Ben was alive 'he used to gamble and when he became
drunk, he would go to our house and he will say, 'Teody' because that was what he used to call me, 'mokimas ta,'
which means 'let's go and look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a
knife was stricken to her.' Mr. Sarabia also said that once he saw Ben had been injured too. He said he voluntarily
testified only that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November
15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the market place, several
taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to sleep
with her in the Genosa house 'because she might be battered by her husband.' When they got to the Genosa house at
about 7:00 in the evening, Miss Arano said that 'her husband was already there and was drunk.' Miss Arano knew he
was drunk 'because of his staggering walking and I can also detect his face.' Marivic entered the house and she heard
them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano
testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every
time her husband would come home drunk. At one time when she did sleep over, she was awakened at 10:00 in the
evening when Ben arrived because the couple 'were very noisy in the sala and I had heard something was broken like
a vase.' She said Marivic ran into her room and they locked the door. When Ben couldn't get in he got a chair and a
knife and 'showed us the knife through the window grill and he scared us.' She said that Marivic shouted for help, but
no one came. On cross-examination, she said that when she left Marivic's house on November 15, 1995, the couple
were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte. Marivic
was his patient 'many times' and had also received treatment from other doctors. Dr. Caing testified that from July 6,
1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr.
Caing and considered him an expert witness.'

xxx xxx xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate
occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of Marivic at the Philphos Clinic which reflected all the
consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly
related to the crime committed. He said it is only a psychiatrist who is qualified to examine the psychological make-up
of the patient, 'whether she is capable of committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2) months
before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle or confront the
Genosa couple who were experiencing 'family troubles'. He told Marivic to return in the morning, but he did not hear
from her again and assumed 'that they might have settled with each other or they might have forgiven with each
other.'

xxx xxx xxx

"Marivic said she did not provoke her husband when she got home that night it was her husband who began the
provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make sure she
would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she was suffering
from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben
would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and abusive
towards her that night was because 'he was crazy about his recent girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their
quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left for Manila the
next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a room, and got herself a job as
a field researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving Leyte, she just
wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened
to the pipe she used to 'smash him once'; that she was wounded by Ben on her wrist with the bolo; and that two (2)
hours after she was 'whirled' by Ben, he kicked her 'ass' and dragged her towards the drawer when he saw that she
had packed his things.'

"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor
emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and some defense
witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident,
and among her responsibilities as such was to take charge of all medico-legal cases, such as the examination of
cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board
exams and passed in 1986. She was called by the police to go to the Genosa residence and when she got there, she saw
'some police officer and neighbor around.' She saw Ben Genosa, covered by a blanket, lying in a semi-prone position
with his back to the door. He was wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area of the head' which she
described as a 'fracture'. And that based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify
as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of
PARRICIDE committed 'with intent to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and
feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x
which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November
1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.
"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona,
Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty 'beyond reasonable doubt'
of the crime of parricide, and further found treachery as an aggravating circumstance, thus sentencing her to the
ultimate penalty of DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000,
Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a
precautionary measure, two (2) drafts of Appellant's Briefs he had prepared for Marivic which, for reasons of her own,
were not conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of
undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice,
coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein
she submitted her 'Brief without counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February
2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow the
exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa
by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and
finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic
pathologist in the country, who opined that the description of the death wound (as culled from the post-mortem
findings, Exhibit 'A') is more akin to a gunshot wound than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's URGENT OMNIBUS
MOTION and remanded the case 'to the trial court for the reception of expert psychological and/or psychiatric opinion
on the 'battered woman syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to
this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any,
submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-
Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan
informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical interviews and
psychological assessment were done at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and
connected presently to the De La Salle University as a professor. Before this, she was the Head of the Psychology
Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and
St. Joseph's College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology
from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a
PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of
the American Psychological Association. She is the secretary of the International Council of Psychologists from about
68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN [Counseling] Association.
She is actively involved with the Philippine Judicial Academy, recently lecturing on the socio-demographic and
psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission
doing research about Military Psychology. She has written a book entitled 'Energy Global Psychology' (together with
Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on battered women
as this is the first case of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological profile of
families involved in domestic violence, and nullity cases, she looked at about 500 cases over a period of ten (10) years
and discovered that 'there are lots of variables that cause all of this marital conflicts, from domestic violence to
infidelity, to psychiatric disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological abuse, verbal abuse, and
emotional abuse to physical abuse and also sexual abuse.'

xxx xxx xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion of herself. She has a self-
defeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and so when the
violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence,
they provoke their spouse to be physically, verbally and even sexually abusive to them.' Dra. Dayan said that usually a
battered x x x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of himself. But then
emerges to have superiority complex and it comes out as being very arrogant, very hostile, very aggressive and very
angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like gambling,
drinking and drugs. And they become violent.' The batterer also usually comes from a dysfunctional family which
over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused each
other so 'there is a lot of modeling of aggression in the family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, self-
blame and guilt that she provoked the violence, the cycle itself which makes her hope her husband will change, the
belief in her obligations to keep the family intact at all costs for the sake of the children.

xxx xxx xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in
another room, or sometimes try to fight back triggering 'physical violence on both of them.' She said that in a 'normal
marital relationship,' abuses also happen, but these are 'not consistent, not chronic, are not happening day in [and]
day out.' In an 'abnormal marital relationship,' the abuse occurs day in and day out, is long lasting and 'even would
cause hospitalization on the victim and even death on the victim.'

xxx xxx xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic
fits the profile of a battered woman because 'inspite of her feeling of self-confidence which we can see at times there
are really feeling (sic) of loss, such feelings of humiliation which she sees herself as damaged and as a broken person.
And at the same time she still has the imprint of all the abuses that she had experienced in the past.'

xxx xxx xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal
separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a victim.

xxx xxx xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before
RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and
a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for thirty-eight (38) years. Prior
to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his
training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines,
assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was
also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period
1954 – 1978' which was presented twice in international congresses. He also authored 'The Mental Health of the
Armed Forces of the Philippines 2000', which was likewise published internationally and locally. He had a medical
textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an
E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the
ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate
degree; while one has to finish medicine to become a specialist in psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit
involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines, violent family
disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention of
therapy was reconciliation. As a result of his experience with domestic violence cases, he became a consultant of the
Battered Woman Office in Quezon City under Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse:
such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state such that the
woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability of the
victim.' Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the
disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, 'it will take
more repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous.'
 "In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or neurologic
anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx xxx xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as if it were real, although
she is not actually being beaten at that time. She thinks 'of nothing but the suffering.'

xxx xxx xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable
and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her 'self-world' is
damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as the deprivation of the
continuous care and love of the parents. As to the batterer, he normally 'internalizes what is around him within the
environment.' And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so
macho; he shows his strong façade 'but in it there are doubts in himself and prone to act without thinking.'

xxx xxx xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the one who administered
the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot control it. It will just
come up in her mind or in his mind.'

xxx xxx xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and 'primarily with
knives. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital x x x
because that abound in the household.' He said a victim resorts to weapons when she has 'reached the lowest rock
bottom of her life and there is no other recourse left on her but to act decisively.'

xxx xxx xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and
seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his
diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.

xxx xxx xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivic'c
mental condition was that she was 're-experiencing the trauma.' He said 'that we are trying to explain scientifically
that the re-experiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at that
point in time that things happened when the re-experiencing of the trauma flashed in her mind.' At the time he
interviewed Marivic 'she was more subdued, she was not super alert anymore x x x she is mentally stress (sic)
because of the predicament she is involved.'

xxx xxx xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord
with the Resolution of this Honorable Court, the records of the partially re-opened trial a quo were elevated."9

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had
killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic aggravating circumstance of
treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed
him with a pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben
Genosa and the reexamination of the cause of his death; (2) the examination of appellant by qualified psychologists and
psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the inclusion of the said experts'
reports in the records of the case for purposes of the automatic review or, in the alternative, a partial reopening of the case for
the lower court to admit the experts' testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion, remanding the case to the trial
court for the reception of expert psychological and/or psychiatric opinion on the "battered woman syndrome" plea; and
requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and
additional evidence, if any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs.
Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on domestic violence. Their testimonies, along with their
documentary evidence, were then presented to and admitted by the lower court before finally being submitted to this Court to
form part of the records of the case.12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence
adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was
therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased
witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further gravely erred in
concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her subsequent apologies were
indicia of guilt, instead of a clear attempt to save the life of her unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-
defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of the crime of parricide
and condemning her to the ultimate penalty of death."13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus;
and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues.
As consistently held by this Court, the findings of the trial court on the credibility of witnesses and their testimonies are
entitled to a high degree of respect and will not be disturbed on appeal in the absence of any showing that the trial judge
gravely abused his discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight and
substance that could affect the outcome of the case.14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material
facts that would reverse or modify the trial court's disposition of the case. In any event, we will now briefly dispose of these
alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without reflecting on the evidence
adduced as to self-defense." We note that in his 17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of
both the prosecution and the defense witnesses and -- on the basis of those and of the documentary evidence on record --
made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense
theory of the accused. While she, or even this Court, may not agree with the trial judge's conclusions, we cannot peremptorily
conclude, absent substantial evidence, that he failed to reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The Information had been filed
with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took
the trial judge about two months from the conclusion of trial to promulgate his judgment. That he conducted the trial and
resolved the case with dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If at
all, the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance
with his constitutional obligation.15
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the
non-presentation of their marriage contract. In People v. Malabago,16 this Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse,
the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a
marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof
is not objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased spouse -- attested in court
that Ben had been married to Marivic.17 The defense raised no objection to these testimonies. Moreover, during her direct
examination, appellant herself made a judicial admission of her marriage to Ben.18 Axiomatic is the rule that a judicial
admission is conclusive upon the party making it, except only when there is a showing that (1) the admission was made
through a palpable mistake, or (2) no admission was in fact made. 19 Other than merely attacking the non-presentation of the
marriage contract, the defense offered no proof that the admission made by appellant in court as to the fact of her marriage to
the deceased was made through a palpable mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by a gunshot or by beating
with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000 Resolution, "[c]onsidering that the
appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at
the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts
actually caused the victim's death." Determining which of these admitted acts caused the death is not dispositive of the guilt or
defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-
beater. Until this case came to us for automatic review, appellant had not raised the novel defense of "battered woman
syndrome," for which such evidence may have been relevant. Her theory of self-defense was then the crucial issue before the
trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear
inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal character, especially his past
behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As correctly elucidated by
the solicitor general, all criminal actions are prosecuted under the direction and control of the public prosecutor, in whom lies
the discretion to determine which witnesses and evidence are necessary to present.20 As the former further points out, neither
the trial court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now fault
the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent
apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. Any reversible error
as to the trial court's appreciation of these circumstances has little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child.
When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying circumstance by clear and
convincing evidence.21 Well-settled is the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third
person) shifts the burden of proof from the prosecution to the defense.22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine
jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at the least, incomplete
self-defense.23 By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their
"understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period
of time."24

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful physical or psychological
behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women
include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman." 25

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and
the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterer's
actions; and false hopes that the relationship will improve.26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of violence,"27 which has three phases:
(1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.28
During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of
hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply
staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be
double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the right to abuse her in the first
place.

However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or
physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted
from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally
unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence
"spirals out of control" and leads to an acute battering incident.29

The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered
woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may
put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it.
The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her
condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember
every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much
stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are
often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt. 30

The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple
experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He
knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her
again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her
partner will change for the better; and that this "good, gentle and caring man" is the real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation
and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or
receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek
professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly
tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this phase, she and her batterer
are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her forgiveness. Underneath this
miserable cycle of "tension, violence and forgiveness," each partner may believe that it is better to die than to be separated.
Neither one may really feel independent, capable of functioning without the other.31

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her
heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual
drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was
this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and
sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?
 A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able
to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx xxx xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx xxx xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage,
from that time on, how frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me." 32

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing
testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending
physician: Dr. Lucero;
 2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending
physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion
furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is
tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to
her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when
this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other
findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx xxx xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on
November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also
the same period from 1989 to 1995, she had a consultation for twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not response when the
medication was given to her, because tension headache is more or less stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history in line of giving the root
cause of what is causing this disease. So, from the moment you ask to the patient all comes from the domestic
problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not
response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

 Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?

A It was dangerous to the child or to the fetus." 34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the
couple quarreling several times; and that on some occasions Marivic would run to him with bruises, confiding that the injuries
were inflicted upon her by Ben.35

Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the
latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened
about ten o'clock at night, because the couple "were very noisy … and I heard something was broken like a vase." Then Marivic
came running into Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were unable to. They
returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt her, Marivic asked her to
sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided
to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple
quarreling.37 Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him, showing in
the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus
and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his father, then my second
child said, 'he was not home yet'. I was worried because that was payday, I was anticipating that he was gambling. So
while waiting for him, my eldest son arrived from school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that
he was again drunk and I was worried that he would again beat me so I requested my cousin to sleep with me, but she
resisted because she had fears that the same thing will happen again last year.
Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly drunk
and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me
again. Perhaps he was disappointed because I just ignore him of his provocation and he switch off the light and I said
to him, 'why did you switch off the light when the children were there.' At that time I was also attending to my
children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the
kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he was already holding the
bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me
again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might as well be
killed so there will be nobody to nag me.'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:
 Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did
not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was
going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I
saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I
ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had
on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx xxx xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does
it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me." 38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche
of a battered person. She had met with Marivic Genosa for five sessions totaling about seventeen hours. Based on their talks,
the former briefly related the latter's ordeal to the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term describe to this Court
what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There
were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical abuse. The husband had a very
meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot
 of vices, going out with barkadas, drinking, even womanizing being involved in cockfight and going home very angry
and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the
reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was
not his own. So she was very angry, she was at the same time very depressed because she was also aware, almost like
living in purgatory or even hell when it was happening day in and day out." 39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional
supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was
the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important information were escalating
abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least
you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as substantial.

xxx xxx xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives?

A What I remember that there were brothers of her husband who are also battering their wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed
her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that
we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe
that there had been provocation and I also believe that she became a disordered person. She had to suffer anxiety
reaction because of all the battering that happened and so she became an abnormal person who had lost she's not
during the time and that is why it happened because of all the physical battering, emotional battering, all the
psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes.40

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this] all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about
the lying prone[ne]ss of the person.

Q What do you mean by that?

 A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x x x [will]
tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that I'm
gathering from her are the truth."41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report, 42 which was based
on his interview and examination of Marivic Genosa. The Report said that during the first three years of her marriage to Ben,
everything looked good -- the atmosphere was fine, normal and happy -- until "Ben started to be attracted to other girls and
was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report
continued: "At first, it was verbal and emotional abuses but as time passed, he became physically abusive. Marivic claimed that
the viciousness of her husband was progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate
whenever she suspected that her husband went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and mercilessly by her husband whenever he
was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, "[s]he also sought
the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of what was happening to her.
But incessant battering became more and more frequent and more severe. x x x."43

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant Marivic Genosa was a
severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In
determining her state of mind, we cannot rely merely on the judgment of an ordinary, reasonable person who is evaluating the
events immediately surrounding the incident. A Canadian court has aptly pointed out that expert evidence on the
psychological effect of battering on wives and common law partners are both relevant and necessary. "How can the mental
state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with
this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the
point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does
she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called
'battered wife syndrome.'"44

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an ordinary, reasonable
person. What goes on in the mind of a person who has been subjected to repeated, severe beatings may not be consistent with
-- nay, comprehensible to -- those who have not been through a similar experience. Expert opinion is essential to clarify and
refute common myths and misconceptions about battered women.45

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in
the United States and the United Kingdom on the treatment and prosecution of cases, in which a battered woman is charged
with the killing of her violent partner. The psychologist explains that the cyclical nature of the violence inflicted upon the
battered woman immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape."46 In her years of research, Dr. Walker found that "the abuse often escalates at the point
of separation and battered women are in greater danger of dying then." 47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very low opinion of herself. She
has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence would happen, they usually think that they
provoke[d] it, that they were the one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically,
verbally and even sexually abusive to them."48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner -- poverty,
self-blame and guilt arising from the latter's belief that she provoked the violence, that she has an obligation to keep the family
intact at all cost for the sake of their children, and that she is the only hope for her spouse to change. 49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent
family relations, having evaluated "probably ten to twenty thousand" violent family disputes within the Armed Forces of the
Philippines, wherein such cases abounded. As a result of his experience with domestic violence cases, he became a consultant
of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence, in
which the physical abuse on the woman would sometimes even lead to her loss of consciousness.50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress disorder, a form of "anxiety
neurosis or neurologic anxietism."51 After being repeatedly and severely abused, battered persons "may believe that they are
essentially helpless, lacking power to change their situation. x x x [A]cute battering incidents can have the effect of stimulating
the development of coping responses to the trauma at the expense of the victim's ability to muster an active response to try to
escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have a predictable positive
effect."52

A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that "even if a person has
control over a situation, but believes that she does not, she will be more likely to respond to that situation with coping
responses rather than trying to escape." He said that it was the cognitive aspect -- the individual's thoughts -- that proved all-
important. He referred to this phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less
important than the individual's set of beliefs or perceptions concerning the situation. Battered women don't attempt to leave
the battering situation, even when it may seem to outsiders that escape is possible, because they cannot predict their own
safety; they believe that nothing they or anyone else does will alter their terrible circumstances." 54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also
believes that he is capable of killing her, and that there is no escape. 55 Battered women feel unsafe, suffer from pervasive
anxiety, and usually fail to leave the relationship.56 Unless a shelter is available, she stays with her husband, not only because
she typically lacks a means of self-support, but also because she fears that if she leaves she would be found and hurt even
more.57

In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated
abuse she had suffered from her spouse over a long period of time, became afflicted with the battered woman syndrome. We,
however, failed to find sufficient evidence that would support such a conclusion. More specifically, we failed to find ample
evidence that would confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing the relationship of Ben
and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a quohow the fatal incident that led
to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical characteristics of this stage. However, that single incident does not prove the existence of the
syndrome. In other words, she failed to prove that in at least another battering episode in the past, she had gone through a
similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally
respond to Ben's relatively minor abuses? What means did she employ to try to prevent the situation from developing into the
next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would
usually run away to her mother's or father's house;58 that Ben would seek her out, ask for her forgiveness and promise to
change; and that believing his words, she would return to their common abode.

Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only
hope for Ben to reform? And that she was the sole support of his emotional stability and well-being? Conversely, how
dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of them regard death as
preferable to separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully
demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully,
albeit merely theoretically and scientifically, how the personality of the battered woman usually evolved or deteriorated as a
result of repeated and severe beatings inflicted upon her by her partner or spouse. They corroborated each other's
testimonies, which were culled from their numerous studies of hundreds of actual cases. However, they failed to present in
court the factual experiences and thoughts that appellant had related to them -- if at all -- based on which they concluded that she
had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated.
To repeat, the records lack supporting evidence that would establish all the essentials of the battered woman syndrome as
manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her
abusive partner. Evidence must still be considered in the context of self-defense.59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of
the battered woman at the time of the offense60 -- she must have actually feared imminent harm from her batterer and
honestly believed in the need to kill him in order to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on one's life;
and the peril sought to be avoided must be imminent and actual, not merely imaginary.61 Thus, the Revised Penal Code
provides the following requisites and effect of self-defense:62
 "Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense.63 It presupposes actual, sudden and unexpected attack -- or
an imminent danger thereof -- on the life or safety of a person.64 In the present case, however, according to the testimony of
Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him. She
had already been able to withdraw from his violent behavior and escape to their children's bedroom. During that time, he
apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether.
He was no longer in a position that presented an actual threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on past violent incidents,
there was a great probability that he would still have pursued her and inflicted graver harm -- then, the imminence of the real
threat upon her life would not have ceased yet. Where the brutalized person is already suffering from BWS, further evidence of
actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable
pattern. To require the battered person to await an obvious, deadly attack before she can defend her life "would amount to
sentencing her to 'murder by installment.'"65 Still, impending danger (based on the conduct of the victim in previous battering
episodes) prior to the defendant's use of deadly force must be shown. Threatening behavior or communication can satisfy the
required imminence of danger.66Considering such circumstances and the existence of BWS, self-defense may be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In the absence of such
aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim.68 Thus, Marivic's killing of Ben
was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter her
penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal liability. It is a
hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including that which has not been
raised by the parties.69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated
November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband
constitutes a form of [cumulative] provocation which broke down her psychological resistance and natural self-
control. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed
continuously. Marivic truly experienced at the hands of her abuser husband a state of psychological paralysis which
can only be ended by an act of violence on her part." 70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain taking, repetitious
battering, [and] repetitious maltreatment" as well as the severity and the prolonged administration of the battering is
posttraumatic stress disorder.71 Expounding thereon, he said:

"Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the
prolonged administration of battering or the prolonged commission of the battering and the psychological and
constitutional stamina of the victim and another one is the public and social support available to the victim. If nobody
is interceding, the more she will go to that disorder....

xxx xxx xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress
disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head,
banging of the head like that. It is usually the very very severe stimulus that precipitate this post[t]raumatic stress
disorder. Others are suffocating the victim like holding a pillow on the face, strangulating the individual, suffocating
the individual, and boxing the individual. In this situation therefore, the victim is heightened to painful stimulus, like
for example she is pregnant, she is very susceptible because the woman will not only protect herself, she is also to
protect the fetus. So the anxiety is heightened to the end [sic] degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?
 A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest now a severe emotional
instability, higher irritability remorse, restlessness, and fear and probably in most [acute] cases the first thing will be
happened to the individual will be thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6)
months. The [acute] is only the first day to six (6) months. After this six (6) months you become chronic. It is stated in
the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious battering but the
individual who is abnormal and then become normal. This is how you get neurosis from neurotic personality of these
cases of post[t]raumatic stress disorder." 72

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated."73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in "cumulative provocation which
broke down her psychological resistance and natural self-control," "psychological paralysis," and "difficulty in concentrating or
impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise
by appellant of her will power without, however, depriving her of consciousness of her acts.There was, thus, a resulting
diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs 974and 1075 of Article 13 of the Revised
Penal Code, this circumstance should be taken in her favor and considered as a mitigating factor. 76

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to
have naturally produced passion and obfuscation. It has been held that this state of mind is present when a crime is committed
as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so
powerful as to overcome reason.77 To appreciate this circumstance, the following requisites should concur: (1) there is an act,
both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the commission of
the crime by a considerable length of time, during which the accused might recover her normal equanimity.78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He
had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept a gun. It should also
be recalled that she was eight months pregnant at the time. The attempt on her life was likewise on that of her fetus. 79 His
abusive and violent acts, an aggression which was directed at the lives of both Marivic and her unborn child, naturally
produced passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate room, her
emotional and mental state continued. According to her, she felt her blood pressure rise; she was filled with feelings of self-
pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben
kept a gun, then she took the weapon and used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic
could have recovered her normal equanimity. Helpful is Dr. Pajarillo's testimony 80 that with "neurotic anxiety" -- a
psychological effect on a victim of "overwhelming brutality [or] trauma" -- the victim relives the beating or trauma as if it were
real, although she is not actually being beaten at the time. She cannot control "re-experiencing the whole thing, the most
vicious and the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is beyond the control
of a person under similar circumstances, must have been what Marivic experienced during the brief time interval and
prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the mitigating
circumstance of passion and obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -- did not arise
from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-
spouse upon appellant. That is, the repeated beatings over a period of time resulted in her psychological paralysis, which was
analogous to an illness diminishing the exercise of her will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing.
That the incident occurred when she was eight months pregnant with their child was deemed by her as an attempt not only on
her life, but likewise on that of their unborn child. Such perception naturally produced passion and obfuscation on her part.
Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the
execution thereof without risk to oneself arising from the defense that the offended party might make. 81 In order to qualify an
act as treacherous, the circumstances invoked must be proven as indubitably as the killing itself; they cannot be deduced from
mere inferences, or conjectures, which have no place in the appreciation of evidence. 82Because of the gravity of the resulting
offense, treachery must be proved as conclusively as the killing itself.83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred
this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed with an "open,
depressed, circular" fracture located at the back of his head. As to exactly how and when he had been fatally attacked,
however, the prosecution failed to establish indubitably. Only the following testimony of appellant leads us to the events
surrounding his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might as well be
killed so there will be nobody to nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did
not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was
going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I
saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I
ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had
on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does
it look like?

A Three (3) inches long and ½ inch wide.

 Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx xxx xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was admitted in PHILPHOS
Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was about to die because of my
blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at
the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself and I felt I was about to
die also because of my blood pressure and the baby, so I got that gun and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer."84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victim's position relative
to appellant's at the time of the shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an argument
or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant.85

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and
deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any defense that might be put
up by the party attacked.86 There is no showing, though, that the present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it
appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her
batterer-spouse. In the absence of any convincing proof that she consciously and deliberately employed the method by which
she committed the crime in order to ensure its execution, this Court resolves the doubt in her favor. 87

Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating
circumstances and no aggravating circumstance have been found to have attended the commission of the offense, the penalty
shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5 88 of the same Code.89 The penalty of reclusion
temporal in its medium period is imposable, considering that two mitigating circumstances are to be taken into account in
reducing the penalty by one degree, and no other modifying circumstances were shown to have attended the commission of
the offense.90 Under the Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which is
next lower in degree -- prision mayor -- and the maximum shall be within the range of the medium period of reclusion
temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision mayor in its
minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion temporal in its medium period, or 14
years 8 months and 1 day as maximum. Noting that appellant has already served the minimum period, she may now apply for
and be released from detention on parole.91

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and
recognize vis-à-vis the given set of facts in the present case. The Court agonized on how to apply the theory as a modern-day
reality. It took great effort beyond the normal manner in which decisions are made -- on the basis of existing law and
jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look
at studies conducted here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the
chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor general and appellant's counsel,
Atty. Katrina Legarda, have helped it in such learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and
given facts. We cannot make or invent them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom, may
do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum
up our main points. First, each of the phases of the cycle of violence must be proven to have characterized at least two
battering episodes between the appellant and her intimate partner. Second, the final acute battering episode preceding the
killing of the batterer must have produced in the battered person's mind an actual fear of an imminent harm from her batterer
and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must
have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the history of violence
perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense.
Under the existing facts of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2)
mitigating circumstances and no aggravating circumstance attending her commission of the offense, her penalty
is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion
temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the
Bureau of Corrections may immediately RELEASE her from custody upon due determination that she is eligible for parole,
unless she is being held for some other lawful cause. Costs de oficio.

SO ORDERED.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio V. Panganiban found that
there was no factual basis to conclude that Marivic was suffering from "Battered Woman Syndrome" (BWS) at the time she
took the life of her husband. With due respect, I register my dissent.

The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of self-defense. It operates
upon the premise that a woman who has been cyclically abused and controlled over a period of time develops a fearful state of
mind. Living in constant danger of harm or death, she knows that future beatings are almost certain to occur and will escalate
over time. Her intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is
forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and constant fear, it is not unlikely
that she would succumb to her helplessness and fail to perceive possible solutions to the problem other than to injure or kill
her batterer. She is seized by fear of an existing or impending lethal aggression and thus would have no opportunity
beforehand to deliberate on her acts and to choose a less fatal means of eliminating her sufferings. 1

As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to wit: (1) the tension-building
phase, where minor batterings in the form of verbal or slight physical abuse occurs. Here, the woman tries to pacify the
batterer through a show of kind, nurturing behavior; or by simply staying out of his way; (2) the acute battering incident phase
which is characterized by brutality, destructiveness and sometimes, death. The battered woman usually realizes that she
cannot reason with him and that resistance would only exacerbate her condition; and (3) the tranquil period, where the couple
experience a compound relief and the batterer may show a tender and nurturing behavior towards his partner.
Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more than one occasion of the
"tension-building phase" of the cycle. The various testimonies of appellant's witnesses clearly reveal that she knew exactly
when she would once again be subjected to acute battery. Her cousin, Ecel Arano, testified that she often asked the latter to
sleep in her house as she was afraid every time her husband came home drunk. Clearly, whenever appellant requested for
Arano's company, she was experiencing a tension-building phase. The barangay captain, Panfilo Tero, also testified that
appellant sought his help two months before she killed her husband, again demonstrating that she was in the tension-building
phase and was attempting to prevent another incident of acute battery. Appellant presented evidence to prove that the
tension-building phase would occur whenever her husband would go out looking for other women, would lose at cockfights or
would come home drunk. She often tried to ignore her husband's attitude or, as testified to by some witnesses for the
prosecution, even shouted back, fought off or even injured her husband during the tension-building phase, if only to prevent
the onset of acute battery.

Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the death of her
husband, i.e., when she knew or felt that she was going to be killed by the deceased. She could not possibly have testified with
clarity as to prior tension-building phases in the cycle as she had never tried to kill her husband before this time.

It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would seek shelter in her
mother's or her father's house after an acute battering incident, after which would begin the process of begging for
forgiveness, promises of change in behavior and return to the conjugal home, only for the same cycle to begin all over again.

To require appellant to prove the state of mind of the deceased, as seems to be required in the ponencia, would mean that no
person would ever be able to prove self-defense in a battered woman case. Appellant could not possibly prove whether the
deceased felt provoked into battering by any act or omission of appellant. She cannot possibly prove that she felt herself to be
the sole support of the deceased's emotional stability and well-being. Nevertheless, appellant felt trapped and helpless in the
relationship as, in the end, she resorted to killing her husband as no one could or did help her, whether out of fear or
insensitivity, during the violent marriage she endured.

The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in the hands of the
deceased as well as the threats to kill her using a bolo or a cutter.2 The physical abuses occurred at least 3 times a week in the
11 miserable years of their marriage,3 six incidents of which were documented by the 1990-1995 medical records of Marivic.
They included, among others, hematoma, contusion, and pain on the breasts; multiple contusions and trauma on the different
parts of her body even during her pregnancy in 1995.4 The tranquil period underwent by Marivic was shown by the repeated
"kiss and make-up" episodes of their relationship. On more than 5 occasions, Marivic ran to her parents' house after violent
fights with the deceased only to forgive the latter every time he would fetch her and promise to change. 5

All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in the mind of Marivic making
her believe that a forthcoming attack from the deceased would cause her death. This state of mind of Marivic was revealed in
her testimony given way back in 1998, before she was examined by experts on BWS. Unaware of the significance of her
declarations, she candidly narrated how she felt immediately before she killed the deceased, thus -

ATTY. TABUCANON

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx xxx xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did
not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was
going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I
saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I
ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

xxx xxx xxx6

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I was admitted in PHILPHOS Clinic, I was
about to vomit. I know my blood pressure has raised. I was frightened I was about to die because of my blood
pressure.

xxx xxx xxx

 A Considering all the physical sufferings that I've been through him, I took pity on myself and I felt I was about to die
also because of my blood pressure and the baby, so I got the gun and shot him. 7

It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the lower court but only
here on automatic review. This makes the foregoing testimony more worthy of great weight and credence considering that the
same could not have been cunningly given to suit or conform to the profile of a battered woman.

Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino Caing testified that he
treated Marivic for hypertension due to domestically related emotional stress on 23 separate occasions. The latest one was on
November 6, 1995 when she suffered from severe hypertension and had a blood pressure of 180/120 on the 8th month of her
pregnancy.8

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined Marivic, assessed the effects
of the repeated violence on the latter as follows:

A What I remember ... was it was more than ten years that she was suffering from emotional anguish. There were a lot
of instance of abuses, ... emotional abuse...verbal abuse and... physical abuse. The husband had very meager income,
she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going
out with barkadas, drinking, even womanizing, being involved in cockfighting and in going home very angry which...
triggered a lot of physical abuse. She also had the experience of taunting from the husband for the reason that the
husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So
she was very angry, she was at the same time very depressed because she .. .[felt] almost like living in purgatory or
even in hell when it was happening day in and day out.

xxx xxx xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all those anxieties, they were not enough, that
the husband was even going to cockfighting x x x

A She was angry with him, he was angry with her and I think he dragged her and even spun her around. She tried to
fight him so there was a lot of fight and when she was able to escape, she went to another room and she locked herself
with the children. And when the husband was for a while very angry he calms down then and then (sic). But I
remember before that the husband was looking for the gun and I think he was not able to open the cabinet because
she had the key. So during that time, I remember, that she was very much afraid of him, so when the husband calmed
down and he was asleep, all she was concerned was to end up her misery, to save her child which she was carrying
and to save her two children. I believe that somehow she's not rational. 9

xxx xxx xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this case that the books you
studied in the expertise in line and in the 77 hour contact with appellant Mrs. Genosa, could you say that this is not
ordinary self-defense but a survival on her part?

A Yes, sir.

Q To what she did to her husband (sic)?

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to survive with her two sons and
[the] child she's bringing.

Q Had she not able to kill her husband, would she still be in the very short moment with the victim (sic)?

A If she did not do that she believes that she will be the one who would be killed. 10

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it was an apprehension
of death and the instinct to defend her and her unborn child's life that drove her to kill her husband.

The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly no aggression or
danger posed on her life by the victim at the time she attacked the latter. Again, I beg to disagree.

Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack must be imminent and
actually in existence. This interpretation must, however, be re-evaluated vis-a-vis the recognized inherent characteristic of the
psyche of a person afflicted with the "Battered Woman Syndrome." As previously discussed, women afflicted by this syndrome
live in constant fear for their life and thus respond in self-defense. Once BWS and an impending danger based on the conduct
of the deceased in previous battering episodes are established, actual occurrence of an assault is no longer a condition sine qua
non before self defense may be upheld. Threatening behavior or communication can satisfy the required imminence of
danger. As stated in the ponencia, to require the battered person to await an obvious deadly attack before she can defend her
life would amount to sentencing her to murder by installment.

In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the physical assaults and an attempt
to shoot Marivic when she was 8 months pregnant, took the place of unlawful aggression, thus entitling her to a complete self
defense even if there was no actual employment of violence by the deceased at the time of the killing. Marivic had every reason
to believe that the deceased would kill her that night not only because the latter was verbally threatening to kill her while
attempting to get a gun from the drawer, but more importantly because the deceased wounded her on the wrist with a bolo,
and because of the deceased's previous conduct of threatening to cut her throat with a cutter which he kept in his wallet.
Quoted hereunder are the relevant testimonies of Marivic -

A When I arrived home, he was already in his usual behavior.

xxx xxx xxx

A He was drunk again, he was yelling in his usual unruly behavior.

xxx xxx xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble for fear that he will beat
me again. Perhaps he was disappointed because I just ignore[d] hi[s] provocation and he switch off the light and I said
to him, "why did you switch off the light when the children were there." At that time I was also attending to my
children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the
kitchen and g[o]t a bolo and cut the antenna wire to stop me from watching television.

xxx xxx xxx

A He switch[ed] off the light and the children were shouting because they were scared and he was already holding a
bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx xxx xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I ran to the room.

Q What do you mean that he was about to attack you?

A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside. 11

xxx xxx xxx

COURT

To the witness

xxx xxx xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?

A Bolo.

Q Were you wounded or were there inflictions on your body when he was holding and trying to frighten you [with]
that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness
Q You were demonstrating a motion, whirling, did your husband really whirl you?

A Yes, your Honor.

Q How did he whirl you?

A Whirled around.

Q Just like spinning.

xxx xxx xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.

Q Then after the whirling what happened?

A He kicked my ass and then I screamed.12

xxx xxx xxx

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.13

A I was frightened that my husband would hurt me, so I packed all his things then on the following day I will leave, I
was afraid and I want to make sure I would deliver my baby safely. 14

xxx xxx xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes, then he dragged me again
outside of the bedroom holding my neck.

ATTY. TABUCANON

Q You said that when Ben came back to your house, he dragged you? How did he drag... you?

COURT INTERPRETER

(The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept shouting at me that "you might as well be
killed so there will be nobody to nag me.

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx xxx xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did
not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was
going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I
saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I
ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please

describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes sir, that was the object used when he intimidate me.15

RE-DIRECT BY ATTY. TABUCANON

Q In other words, there were two (2) incidents, the first incident and then he left and then two (2) hours after he came
back?

A Yes, sir.

Q And the whirling happened in the first incident?

A Yes, sir.

Q And the dragging with arms flexed in her neck and on that blade

happened on the second incident (sic)?

A Ye, sir.

xxx xxx xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

Q Who used that?

A Ben.

Q He used that on you?

 A He scared me on that (sic).

xxx xxx xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16

There are many things which cannot be proved by direct evidence. One of this is state of mind. In the case at bar, there is more
than sufficient physical evidence presented by the appellant from which her mental state can be inferred. The prosecution did
not object to the presentation of these physical and testimonial pieces of evidence, namely, the medical records of 23 instances
of domestic violence-related injuries and the testimonies of neighbors, cousins and even the barangay captain. Indeed, no
person would endure 23 reported instances of beatings if she were planning to kill her spouse in the first place. The majority
need not worry that women around the country will mastermind the killings of their husbands and then use this Decision to
bolster their attempts to employ the BWS defense.

Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of passion and obfuscation. This,
at the very least, supports a finding that the acts of violence and battery committed by the deceased were illegal and unlawful
and were committed immediately before appellant could recover her natural equanimity. But what is the natural equanimity
of a battered woman? Appellant was not a normal married woman. She can never be in a state of natural equanimity as she
was in a constant state of alertness and hypersensitivity to the next phase of acute battery. The esteemed ponente also
correctly found that the appellant acted with diminished will-power. However, he failed to go further. In the case of People v.
Javier,17 it was held:

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed mitigating
circumstance of illness. In this case, however, aside from the testimony of the accused that his mind went blank when he killed
his wife due to loss of sleep, no medical finding was presented regarding his mental condition at the time of the killing. This
Court can hardly rely on the bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and
convincing evidence was shown that accused-appellant was suffering an illness which diminished his exercise of will-power at
the time of the killing.18

In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that she was a battered woman
for 13-14 years and that she suffered from the "Battered Woman Syndrome". Expert testimony was presented and admitted to
this effect, such that the ponente ably discussed the causes and effects of the syndrome. To ignore the testimony and the
evidence thus presented is to make impossible the proof of mental state. Evidence as to the mental state need not be also
"beyond reasonable doubt."

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes was sufficiently satisfied
in the present case. This, juxtaposed to Marivic's affliction with BWS justified the killing of the deceased. The danger posed or
created in her mind by the latter's threats using bladed weapons, bred a state of fear, where under the circumstances, the
natural response of the battered woman would be to defend herself even at the cost of taking the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is a noble recognition of the
plight of, and a triumph for battered women who are trapped in a culture of silence, shame, and fear. This would however be
an empty victory if we deliberately close our eyes to the antecedents of this case. The facts are simple. Marivic was suffering
from the "Battered Woman Syndrome" and was defending herself when she killed her husband. Her acquittal of the charge of
parricide is therefore in order.

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.