Escolar Documentos
Profissional Documentos
Cultura Documentos
SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the
President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive
Assistant to the President , MELQUIADES P. DE LA CRUZ, in his
capacity as Director, Malacaang Records Office, and FLORENDO S.
PABLO, in his capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right
recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well
as the principle that laws to be valid and enforceable must be published in the
Official Gazette or otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish, and/or cause the
publication in the Official Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171,
179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325,
326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427,
429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566,
573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800,
802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061,
1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300,
1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840,
1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116,
130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192,
193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228,
231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325,
327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386,
396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501,
399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611,
612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196,
1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547,
1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609,
1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723,
1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762,
1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807,
1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860,
1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044,
2145, 2147-2161, 2163-2244.
1270,
1550161217311764181218391866,
1952,
2046-
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536,
538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574,
593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707,
712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39,
50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378,
380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed
outright on the ground that petitioners have no legal personality or standing to
bring the instant petition. The view is submitted that in the absence of any
showing that petitioners are personally and directly affected or prejudiced by
the alleged non-publication of the presidential issuances in question 2 said
petitioners are without the requisite legal personality to institute this
mandamus proceeding, they are not being "aggrieved parties" within the
meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal,
corporation, board or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use a rd enjoyment of a right or
office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty and
praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do
the act required to be done to Protect the rights of the
petitioner, and to pay the damages sustained by the petitioner
by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition
concerns a public right and its object is to compel the performance of a public
duty, they need not show any specific interest for their petition to be given due
course.
The issue posed is not one of first impression. As early as the 1910 case
of Severino vs. Governor General, 3 this Court held that while the general rule is
that "a writ of mandamus would be granted to a private individual only in those
cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with
the public at large," and "it is for the public officers exclusively to apply for the
writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e.,
469]," nevertheless, "when the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the people are
regarded as the real party in interest and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or special
interest in the result, it being sufficient to show that he is a citizen and as such
interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd
ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to compel
the Governor General to call a special election for the position of municipal
president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said:
the pragmatic and realistic course set forth in Chicot County Drainage District
vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of
Congress, having been found to be unconstitutional, was not a
law; that it was inoperative, conferring no rights and imposing
no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago,
1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,
however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a
determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration. The effect of
the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular
conduct, private and official. Questions of rights claimed to
have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public
policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions
are among the most difficult of those which have engaged the
attention of courts, state and federal and it is manifest from
numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified.
Consistently
with
the
above
principle,
this
Court
in Rutter
vs.
Esteban 9 sustained the right of a party under the Moratorium Law, albeit said
right had accrued in his favor before said law was declared unconstitutional by
this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their
publication in the Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The past cannot always be
erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of
the presidential decrees sought by petitioners to be published in the Official
Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and
1937 to 1939, inclusive, have not been so published. 10 Neither the subject
matters nor the texts of these PDs can be ascertained since no copies thereof
are available. But whatever their subject matter may be, it is undisputed that
none of these unpublished PDs has ever been implemented or enforced by the
government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise the public of the
contents of [penal] regulations and make the said penalties binding on the
persons affected thereby. " The cogency of this holding is apparently recognized
by respondent officials considering the manifestation in their comment that
"the government, as a matter of policy, refrains from prosecuting violations of
criminal laws until the same shall have been published in the Official Gazette or
in some other publication, even though some criminal laws provide that they
shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official
Gazette all unpublished presidential issuances which are of general application,
and unless so published, they shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Separate Opinions
question. Matters deemed settled could still be inquired into. I am not prepared
to hold that such an effect is contemplated by our decision. Where such
presidential decree or executive act is made the basis of a criminal prosecution,
then, of course, its ex post facto character becomes evident. 5 In civil cases
though, retroactivity as such is not conclusive on the due process aspect. There
must still be a showing of arbitrariness. Moreover, where the challenged
presidential decree or executive act was issued under the police power, the
non-impairment clause of the Constitution may not always be successfully
invoked. There must still be that process of balancing to determine whether or
not it could in such a case be tainted by infirmity. 6 In traditional terminology,
there could arise then a question of unconstitutional application. That is as far
as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to
affirm that publication is essential to the effectivity of a legislative or executive
act of a general application. I am not in agreement with the view that such
publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to
this exception, "unless it is otherwise provided." Moreover, the Civil Code is
itself only a legislative enactment, Republic Act No. 386. It does not and cannot
have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice
Escolin that presidential decrees and executive acts not thus previously
published in the Official Gazette would be devoid of any legal character. That
would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to
such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and
Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of
fair play and justice that a reasonable opportunity to be informed must be
afforded to the people who are commanded to obey before they can be
punished for its violation, 1 citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be
published and the people officially and specially informed of said contents and
its penalties.
Without official publication in the Official Gazette as required by Article 2 of the
Civil Code and the Revised Administrative Code, there would be no basis nor
justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of
the law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code
that "only laws which are silent as to their effectivity [date] need be published
in the Official Gazette for their effectivity" is manifestly untenable. The plain
text and meaning of the Civil Code is that "laws shall take effect after fifteen
days following the completion of their publication in the Official Gazette, unless
it is otherwise provided, " i.e. a different effectivity date is provided by the law
itself. This proviso perforce refers to a law that has been duly published
pursuant to the basic constitutional requirements of due process. The best
example of this is the Civil Code itself: the same Article 2 provides otherwise
that it "shall take effect [only] one year [not 15 days] after such
publication. 2 To sustain respondents' misreading that "most laws or decrees
specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render
nugatory the Civil Code's indispensable and essential requirement of prior
publication in the Official Gazette by the simple expedient of providing for
immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally
fixed by the Civil Code for its proper dissemination.
publication in the Official Gazette, it will not mean that the decree can have
retroactive effect to the date of effectivity mentioned in the decree itself. There
should be no retroactivity if the retroactivity will run counter to constitutional
rights or shall destroy vested rights.
subsequent statute that has a provision of its own as to when and how it will
take effect. Only a higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it
holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably
written opinion of Justice Escolin. I am unable, however, to concur insofar as it
would unqualifiedly impose the requirement of publication in the Official
Gazette for unpublished "presidential issuances" to have binding force and
effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not even
aware of the existence of any legislative or executive act having the force and
effect of law. My point is that such publication required need not be confined to
the Official Gazette. From the pragmatic standpoint, there is an advantage to
be gained. It conduces to certainty. That is too be admitted. It does not follow,
however, that failure to do so would in all cases and under all circumstances
result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me,
raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute
of effectivity unless published in the Official Gazette. There is no such
requirement in the Constitution as Justice Plana so aptly pointed out. It is true
that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible
misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice
Plana. Its first paragraph sets forth what to me is the constitutional doctrine
applicable to this case. Thus: "The Philippine Constitution does not require the
publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due
process requires notice of laws to affected Parties before they can be bound
thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. 1 I am likewise in agreement with its
closing paragraph: "In fine, I concur in the majority decision to the extent that it
requires notice before laws become effective, for no person should be bound by
a law without notice. This is elementary fairness. However, I beg to disagree
insofar as it holds that such notice shall be by publication in the Official
Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command
of the government "must be ascertainable in some form if it is to be enforced at
all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out
by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is
thus essential. What I am not prepared to subscribe to is the doctrine that it
must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me
that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it
could be that parties aware of their existence could have conducted themselves
in accordance with their provisions. If no legal consequences could attach due
to lack of publication in the Official Gazette, then serious problems could arise.
Previous transactions based on such "Presidential Issuances" could be open to
question. Matters deemed settled could still be inquired into. I am not prepared
to hold that such an effect is contemplated by our decision. Where such
presidential decree or executive act is made the basis of a criminal prosecution,
then, of course, its ex post facto character becomes evident. 5 In civil cases
though, retroactivity as such is not conclusive on the due process aspect. There
must still be a showing of arbitrariness. Moreover, where the challenged
presidential decree or executive act was issued under the police power, the
non-impairment clause of the Constitution may not always be successfully
invoked. There must still be that process of balancing to determine whether or
not it could in such a case be tainted by infirmity. 6 In traditional terminology,
there could arise then a question of unconstitutional application. That is as far
as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to
affirm that publication is essential to the effectivity of a legislative or executive
act of a general application. I am not in agreement with the view that such
publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to
this exception, "unless it is otherwise provided." Moreover, the Civil Code is
itself only a legislative enactment, Republic Act No. 386. It does not and cannot
have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice
Escolin that presidential decrees and executive acts not thus previously
published in the Official Gazette would be devoid of any legal character. That
would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to
such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and
Alampay concur in this separate opinion.
afforded to the people who are commanded to obey before they can be
punished for its violation, 1 citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be
published and the people officially and specially informed of said contents and
its penalties.
Without official publication in the Official Gazette as required by Article 2 of the
Civil Code and the Revised Administrative Code, there would be no basis nor
justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of
the law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code
that "only laws which are silent as to their effectivity [date] need be published
in the Official Gazette for their effectivity" is manifestly untenable. The plain
text and meaning of the Civil Code is that "laws shall take effect after fifteen
days following the completion of their publication in the Official Gazette, unless
it is otherwise provided, " i.e. a different effectivity date is provided by the law
itself. This proviso perforce refers to a law that has been duly published
pursuant to the basic constitutional requirements of due process. The best
example of this is the Civil Code itself: the same Article 2 provides otherwise
that it "shall take effect [only] one year [not 15 days] after such
publication. 2 To sustain respondents' misreading that "most laws or decrees
specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render
nugatory the Civil Code's indispensable and essential requirement of prior
publication in the Official Gazette by the simple expedient of providing for
immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally
fixed by the Civil Code for its proper dissemination.
I agree. There cannot be any question but that even if a decree provides for a
date of effectivity, it has to be published. What I would like to state in
connection with that proposition is that when a date of effectivity is mentioned
in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have
retroactive effect to the date of effectivity mentioned in the decree itself. There
In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it
holds that such notice shall be by publication in the Official Gazette.
DECISION
KAPUNAN, J.:
Petitioners argue that with the passage of R.A. 7169, the liquidation court
became functus officio, and no longer had the authority to continue with
liquidation proceedings.
Republic Act No. 7169 entitled An Act To Rehabilitate The Philippine Veterans
Bank Created Under Republic Act No. 3518, Providing The Mechanisms
Therefor, And For Other Purposes, which was signed into law by President
Corazon C. Aquino on January 2, 1992 and which was published in the Official
10
Gazette on February 24, 1992, provides in part for the reopening of the
Philippine Veterans Bank together with all its branches within the period of
three (3) years from the date of the reopening of the head office. 7 The law
likewise provides for the creation of a rehabilitation committee in order to
facilitate the implementation of the provisions of the same. 8
Pursuant to said R.A. No. 7169, the Rehabilitation Committee submitted the
proposed Rehabilitation Plan of the PVB to the Monetary Board for its approval.
Meanwhile, PVB filed a Motion to Terminate Liquidation of Philippine Veterans
Bank dated March 13, 1992 with the respondent judge praying that the
liquidation proceedings be immediately terminated in view of the passage of
R.A. No. 7169.
On April 10, 1992, the Monetary Board issued Monetary Board Resolution No.
348 which approved the Rehabilitation Plan submitted by the Rehabilitation
Committee.
Thereafter, the Monetary Board issued a Certificate of Authority allowing PVB to
reopen.
corporate life and activities in an effort to restore and reinstate the corporation
to its former position of successful operation and solvency. 10
It is crystal clear that the concept of liquidation is diametrically opposed or
contrary to the concept of rehabilitation, such that both cannot be undertaken
at the same time. To allow the liquidation proceedings to continue would
seriously hinder the rehabilitation of the subject bank.
Anent the claim of respondents Central Bank and Liquidator of PVB that R.A. No.
7169 became effective only on March 10, 1992 or fifteen (15) days after its
publication in the Official Gazette; and, the contention of intervenors VOP
Security, et. al. that the effectivity of said law is conditioned on the approval of
a rehabilitation plan by the Monetary Board, among others, the Court is of the
view that both contentions are bereft of merit.
While as a rule, laws take effect after fifteen (15) days following the completion
of their publication in the Official Gazette or in a newspaper of general
circulation in the Philippines, the legislature has the authority to provide for
exceptions, as indicated in the clause unless otherwise provided.
On June 3, 1992, the liquidator filed A Motion for the Termination of the
Liquidation Proceedings of the Philippine Veterans Bank with the respondent
judge.
On August 3, 1992, the Philippine Veterans Bank opened its doors to the public
and started regular banking operations.
Clearly, the enactment of Republic Act No. 7169, as well as the subsequent
developments has rendered the liquidation court functus officio. Consequently,
respondent judge has been stripped of the authority to issue orders involving
acts of liquidation.
Liquidation, in corporation law, connotes a winding up or settling with creditors
and debtors.9 It is the winding up of a corporation so that assets are distributed
to those entitled to receive them. It is the process of reducing assets to cash,
discharging liabilities and dividing surplus or loss.
Sec. 10. Effectivity. This Act shall take effect upon its approval.
Assuming for the sake of argument that publication is necessary for the
effectivity of R.A. No. 7169, then it became legally effective on February 24,
1992, the date when the same was published in the Official Gazette, and not on
March 10, 1992, as erroneously claimed by respondents Central Bank and
Liquidator.
WHEREFORE, in view of the foregoing, the instant petition is hereby GIVEN
DUE COURSE and GRANTED. Respondent Judge is hereby PERMANENTLY
ENJOINED from further proceeding with Civil Case No. SP- 32311.
SO ORDERED.
11
12
3.2 The EXPORT PROGRAM may be carried out by any of the following:
a. By the IMPORTER himself if he has the capabilities and facilities to carry out
the export of Philippine products to PROC in his own name; or
b. Through a tie-up between the IMPORTER and a legitimate exporter (of
Philippine products) who is willing to carry out the export commitments of the
IMPORTER under these rules. The tie-up shall not make the IMPORTER the
exporter of the goods but shall merely ensure that the importation sought to be
approved is matched one-to-one (1:1) in value with a corresponding export of
Philippine products to PROC. 2
4.3 Within the six (6) months period above stated, the IMPORTER is entitled to a
(i) refund of the cash deposited without interest; (ii) cancellation of the Bank
holdout or (iii) Cancellation of the Domestic Letter of Credit upon showing that
he has completed the export commitment pertaining to his importation and
provided further that the following documents are submitted to PITC:
a)
Final
Sales
Invoice
b)
Bill
of
lading
or
Airway
bill
c)
Bank
Certificate
of
Inward
Remittance
d) PITC EXPORT APPLICATION FOR NO. M-1005
5. MISCELLANEOUS
5.1 All other requirements for importations of goods and commodities from
PROC must be complied with in addition to the above.
5.2 PITC shall have the right to disapprove any and all import applications not in
accordance with the rules and regulations herein prescribed.
5.3 Should the IMPORTER or any of his duly authorized representatives make
any false statements or fraudulent misrepresentations in the Import/Export
Application, or falsify, forge or simulate any document required under these
rules and regulations, PITC is authorized to reject all pending and future
import/export applications of said IMPORTER and/or disqualify said IMPORTER
from doing any business with SOCPEC through PITC.
Desiring to make importations from PROC, private respondents Remington and
Firestone, both domestic corporations, organized and existing under Philippine
laws, individually applied for authority to import from PROC with the petitioner.
They were granted such authority after satisfying the requirements for
importers, and after they executed respective undertakings to balance their
importations from PROC with corresponding export of Philippine products to
PROC.
For other commodities: 50% of the value of the imports applied for.
4.1 The guarantee may be in the form of (i) a non-interest bearing cash deposit;
(ii) Bank hold-out in favor of PITC (PITC Form No. M-1007) or (iii) a Domestic
Letter of Credit (with all bank opening charges for account of Importer) opened
in favor of PITC as beneficiary.
4.2 The guarantee shall be made in favor of PITC and will be automatically
forfeited in favor of PITC, fully or partially, if the required export program is not
completed by the importer within six (6) months from date of approval of the
Import Application.
13
14
In the implementation of such order, PITC President Jose Luis U. Yulo, Jr. issued a
corporate Memorandum 10 instructing that all import applications for the PROC
filed with the PITC as of April 20, 1993 shall no longer be covered by the trade
balancing program outlined in the Administrative Order.
Forthwith, the PITC allowed the private respondents to import anew from the
PROC, without being required to comply anymore with the lifted requirement of
balancing its imports with exports of Philippine products to PROC. 11 In
its Constancia 12 filed with the Court on November 22, 1993, Remington
expressed its desire to have the present action declared moot and academic
considering the new supervening developments. For its part, respondent
Firestone made a Manifestation 13 in lieu of its Memorandum, informing the
court of the aforesaid developments of the new trade program of the
Philippines with China, and prayed for the courts early resolution of the action.
To support its submission that the present action is now moot and academic,
respondent Remington cites Executive Order No. 244, 14 issued by President
Ramos on May 12, 1995. The Executive Order states:
WHEREAS, continued coverage of the Peoples Republic of China by Letter of
Instructions No. 444 is no longer consistent with the countrys national interest,
as coursing Republic of the Philippines-Peoples Republic China Trade through
the Philippine International Trading Corporations as provided for under Letter of
Instructions No. 444 is becoming an unnecessary barrier to trade;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order;
The Committee on Scientific and Technical Cooperation with Socialist Countries
to delete the Peoples Republic of China from the list of countries covered by
Letter of Instructions No. 444.
Done in the City of Manila, this 12th day of May in the year of Our Lord,
Nineteen Hundred and Ninety-Five.
PITC filed its own Manifestation 15 on December 15, 1993, wherein it adopted
the arguments raised in its Petition as its Memorandum. PITC disagrees with
Remington on the latters submission that the case has become moot and
academic as a result of the abrogation of Administrative Order SOCPEC No. 8908-01, since respondent Remington had incurred obligations to the petitioner
consisting of charges for the 0.5% Counter Export Development Service
provided by PITC to Remington, which obligations remain outstanding. 16 The
propriety of such charges must still be resolved, petitioner argues, thereby
maintaining the issue of the validity of SOCPEC Order No. 89-08-01, before it
was abrogated by Executive fiat.
There is no question that from April 20, 1993, when trading balancing measures
with PROC were lifted by the President, Administrative Order SOCPEC No. 8908-01 no longer has force and effect, and respondents are thus entitled anew to
apply for authority to import from the PROC, without the trade balancing
requirements previously imposed on proposed importers. Indeed, it appears
that since the lifting of the trade balancing measures, Remington had been
allowed to import anew from PROC.
There remains, however, the matter of the outstanding obligations of the
respondent for the charges relating to the 0.5% Counter Export Development
Service in favor of PITC, for the period when the questioned Administrative
Order remained in effect. Is the obligation still subsisting, or are the
respondents freed from it?
To resolve this issue, we are tasked to consider the constitutionality of
Administrative Order No. SOCPEC 89-08-01, based on the arguments set up by
the parties in their Petition and Comment. In so doing, we must inquire into the
nature of the functions of the PITC, in the light of present realities.
The PITC is a government owned or controlled corporation created under P.D.
No. 252 17 dated August 6, 1973. P.D. No. 1071, 18 issued on May 9, 1977 which
revised the provisions of P.D. 252. The purposes and powers of the said
governmental entity were enumerated under Section 5 and 6 thereof. 19
On August 9, 1976, the late President Ferdinand Marcos issued Letter of
Instruction (LOI) No. 444, 20 directing, inter alia, that trade (export or import of
all commodities), whether direct or indirect, between the Philippines and any of
the Socialist and other Centrally Planned Economy Countries (SOCPEC),
including the Peoples Republic of China (PROC) shall be undertaken or coursed
through the PITC. Under the LOI, PITC was mandated to: 1) participate in all
official trade and economic discussions between the Philippines and SOCPEC; 2)
adopt such measures and issue such rules and regulations as may be necessary
for the effective discharge of its functions under its instructions; and, 3)
undertake the processing and approval of all applications for export to or
import from the SOCPEC.
Pertinent provisions of the Letter of Instruction are herein reproduced:
LETTER OF INSTRUCTION 444
15
16
It is allegedly in line with its powers under LOI 444 and in keeping with the MOU
and Trade Protocols with PROC that PITC issued its now assailed Administrative
Order No. SOCPEC 89-08-01 25 on August 30, 1989 (amended in March, 1992).
Undoubtedly, President Aquino, in issuing EO 133, is empowered to modify and
amend the provisions of LOI 444, which was issued by then President Marcos,
both issuances being executive directives. As observed by us in Philippine
Association of Services Exporters, Inc. vs. Torres, 26
there is no need for legislative delegation of power to the President to revoke
the Letter of Instruction by way of an Executive Order. This is notwithstanding
the fact that the subject LOI 1190 was issued by President Marcos, when he was
extraordinarily empowered to exercise legislative powers, whereas EO 450 was
issued by Pres. Aquino when her transitional legislative powers have already
ceased, since it was found that LOI 1190 was a mere administrative directive,
hence, may be repealed, altered, or modified by EO 450.
We do not agree, however, with the trial courts ruling PITCs authority to issue
rules and regulations pursuant to the Special Provision of LOI 444 and P.D. No.
1071, have already been repealed by EO 133.
While PITCs power to engage in commercial import and export activities is
expressly recognized and allowed under Section 16 (d) of EO 133, the same is
not limited only to new or non-traditional products and markets not normally
pursued by the private business sector. There is not indication in the law of the
removal of the powers of the PITC to exercise its regulatory functions in the
area of importations from SOCPEC countries. Though it does not mention the
grant of regulatory power, EO 133, as worded, is silent as to the abolition or
limitation of such powers, previously granted under P.D. 1071, from the PITC.
Likewise, the general repealing clause in EO 133 stating that all laws,
ordinances, rules, and regulations, or other parts thereof, which are
inconsistent with the Executive Order are hereby repealed or modified
accordingly, cannot operate to abolish the grant of regulatory powers to the
PITC. There can be no repeal of the said powers, absent any cogency of
irreconcilable inconsistency or repugnancy between the issuances, relating to
the regulatory power of the PITC.
The President, in promulgating EO 133, had not intended to overhaul the
functions of the PITC. The DTI was established, and was given powers and
duties including those previously held by the PITC as an independent
government entity, under P.D. 1071 and LOI 444. The PITC was thereby
attached to the DTI as an implementing arm of the said department.
17
exercised. These included the power to issue regulations having the force of
law, and the power to hear and decide cases powers that had previously
been reserved to the legislatures and the courts. (Houghteling/Pierce,
Lawmaking by Administrative Agencies, p. 166)
The respondents likewise argue that PITC is not empowered to issue the
Administrative Order because no grant of such power was made under the
Trade Protocols of 1989, 1990 or 1991. We do not agree. The Trade Protocols
aforesaid, are only the enumeration of the products and goods which signatory
countries have agreed to trade. They do not bestow any regulatory power, for
executive power is vested in the Executive Department, 35 and it is for the latter
to delegate the exercise of such power among its designated agencies.
In sum, the PITC was legally empowered to issue Administrative Orders, as a
valid exercise of a power ancillary to legislation.
This does not imply however, that the subject Administrative Order is a valid
exercise of such quasi-legislative power. The original Administrative Order
issued on August 30, 1989, under which the respondents filed their applications
for importation, was not published in the Official Gazette or in a newspaper of
general circulation. The questioned Administrative Order, legally, until it is
published, is invalid within the context of Article 2 of Civil Code, which reads:
Art. 2. Laws shall take effect fifteen days following the completion of their
publication in the Official Gazette (or in a newspaper of general circulation in
the Philippines), unless it is otherwise provided. . . .
The fact that the amendments to Administrative Order No. SOCPEC 89-08-01
were filed with, and published by the UP Law Center in the National
Administrative Register, does not cure the defect related to the effectivity of
the Administrative Order.
This court, in Tanada vs. Tuvera36 stated, thus:
We hold therefore that all statutes, including those of local application and
private laws, shall be published as a condition for their effectivity, which shall
begin fifteen days after publication unless a different effectivity is fixed by the
legislature.
Covered by this rule are presidential decrees and executive orders promulgated
by the President in the exercise of legislative powers or, at present, directly
conferred by the Constitution. Administrative Rules and Regulations must also
18
Thus, even before the trade balancing measures issued by the petitioner were
lifted by President Fidel V. Ramos, the same were never legally effective, and
private respondents, therefore, cannot be made subject to them, because
Administrative Order 89-08-01 embodying the same was never published, as
mandated by law, for its effectivity. It was only on March 30, 1992 when the
amendments to the said Administrative Order were filed in the UP Law Center,
and published in the National Administrative Register as required by the
Administrative Code of 1987.
Finally, it is the declared Policy of the Government to develop and strengthen
trade relations with the Peoples Republic of China. As declared by the President
in EO 244 issued on May 12, 1995, continued coverage of the Peoples Republic
of China by Letter of Instructions No. 444 is no longer consistent with the
countrys national interest, as coursing RP-PROC trade through the PITC as
provided for under Letter of Instructions No. 444 is becoming an unnecessary
barrier to trade. 37
Conformably with such avowed policy, any remnant of the restrained
atmosphere of trading between the Philippines and PROC should be done away
with, so as to allow economic growth and renewed trade relations with our
neighbors to flourish and may be encouraged.
CORTES, J.:
This special civil action for certiorari seeks to declare null and void two (2)
resolutions of the Special First Division of the Court of Appeals in the case of
19
Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286.
The first resolution promulgated on 30 September 1987 denied petitioners'
motion for extension of time to file a motion for reconsideration and directed
entry of judgment since the decision in said case had become final; and the
second Resolution dated 27 October 1987 denied petitioners' motion for
reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright for not being
verified as required by Rule 65 section 1 of the Rules of Court. However, even if
the instant petition did not suffer from this defect, this Court, on procedural and
substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-out building
owned by petitioners collapsed and destroyed the tailoring shop occupied by
the family of private respondents, resulting in injuries to private respondents
and the death of Marissa Bernal, a daughter. Private respondents had been
warned by petitioners to vacate their shop in view of its proximity to the
weakened wall but the former failed to do so. On the basis of the foregoing
facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by
the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross
negligence and awarding damages to private respondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of Appeals in a
decision promulgated on August 17, 1987, a copy of which was received by
petitioners on August 25, 1987. On September 9, 1987, the last day of the
fifteen-day period to file an appeal, petitioners filed a motion for extension of
time to file a motion for reconsideration, which was eventually denied by the
appellate court in the Resolution of September 30, 1987. Petitioners filed their
motion for reconsideration on September 24, 1987 but this was denied in the
Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave abuse of
discretion when it denied petitioners' motion for extension of time to file a
motion for reconsideration, directed entry of judgment and denied their motion
for reconsideration. It correctly applied the rule laid down in Habaluyas
Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that
the fifteen-day period for appealing or for filing a motion for reconsideration
cannot be extended. In its Resolution denying the motion for reconsideration,
promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and
clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule shall be
strictly enforced that no motion for extension of time to file a motion for
reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the
Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may
be filed only in cases pending with the Supreme Court as the court of last
resort, which may in its sound discretion either grant or deny the extension
requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate Appellate
Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule
and went further to restate and clarify the modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144
SCRA 161],stressed the prospective application of said rule, and explained the
operation of the grace period, to wit:
In other words, there is a one-month grace period from the
promulgation on May 30, 1986 of the Court's Resolution in the
clarificatory Habaluyas case, or up to June 30, 1986, within
which the rule barring extensions of time to file motions for
new trial or reconsideration is, as yet, not strictly enforceable.
Since petitioners herein filed their motion for extension on
February 27, 1986, it is still within the grace period, which
expired on June 30, 1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate Appellate
Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].]
In the instant case, however, petitioners' motion for extension of time was filed
on September 9, 1987, more than a year after the expiration of the grace
period on June 30, 1986. Hence, it is no longer within the coverage of the grace
period. Considering the length of time from the expiration of the grace period to
the promulgation of the decision of the Court of Appeals on August 25, 1987,
petitioners cannot seek refuge in the ignorance of their counsel regarding said
rule for their failure to file a motion for reconsideration within the reglementary
period.
Petitioners contend that the rule enunciated in the Habaluyas case should not
be made to apply to the case at bar owing to the non-publication of
the Habaluyas decision in the Official Gazette as of the time the subject
decision of the Court of Appeals was promulgated. Contrary to petitioners' view,
there is no law requiring the publication of Supreme Court decisions in the
Official Gazette before they can be binding and as a condition to their becoming
effective. It is the bounden duty of counsel as lawyer in active law practice to
keep abreast of decisions of the Supreme Court particularly where issues have
been clarified, consistently reiterated, and published in the advance reports of
20
This Court likewise finds that the Court of Appeals committed no grave abuse of
discretion in affirming the trial court's decision holding petitioner liable under
Article 2190 of the Civil Code, which provides that "the proprietor of a building
or structure is responsible for the damage resulting from its total or partial
collapse, if it should be due to the lack of necessary repairs.
Nor was there error in rejecting petitioners argument that private respondents
had the "last clear chance" to avoid the accident if only they heeded the.
warning to vacate the tailoring shop and , therefore, petitioners prior
negligence should be disregarded, since the doctrine of "last clear chance,"
which has been applied to vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant
petition for lack of merit.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16704
Overruling these objections, the Social Security Commission ruled that Circular
No. 22 is not a rule or regulation that needed the approval of the President and
publication in the Official Gazette to be effective, but a mere administrative
interpretation of the statute, a mere statement of general policy or opinion as
to how the law should be construed.
Not satisfied with this ruling, petitioner comes to this Court on appeal.
The single issue involved in this appeal is whether or not Circular No. 22 is a
rule or regulation, as contemplated in Section 4(a) of Republic Act 1161
empowering the Social Security Commission "to adopt, amend and repeal
subject to the approval of the President such rules and regulations as may be
necessary to carry out the provisions and purposes of this Act."
There can be no doubt that there is a distinction between an administrative rule
or regulation and an administrative interpretation of a law whose enforcement
is entrusted to an administrative body. When an administrative agency
promulgates rules and regulations, it "makes" a new law with the force and
effect of a valid law, while when it renders an opinion or gives a statement of
policy, it merely interprets a pre-existing law (Parker, Administrative Law, p.
197; Davis, Administrative Law, p. 194). Rules and regulations when
promulgated in pursuance of the procedure or authority conferred upon the
administrative agency by law, partake of the nature of a statute, and
compliance therewith may be enforced by a penal sanction provided in the law.
This is so because statutes are usually couched in general terms, after
expressing the policy, purposes, objectives, remedies and sanctions intended
by the legislature. The details and the manner of carrying out the law are often
21
times left to the administrative agency entrusted with its enforcement. In this
sense, it has been said that rules and regulations are the product of a
delegated power to create new or additional legal provisions that have the
effect of law. (Davis,op. cit., p. 194.) .
A rule is binding on the courts so long as the procedure fixed for its
promulgation is followed and its scope is within the statutory authority granted
by the legislature, even if the courts are not in agreement with the policy stated
therein or its innate wisdom (Davis, op. cit., 195-197). On the other hand,
administrative interpretation of the law is at best merely advisory, for it is the
courts that finally determine what the law means.
The case of People v. Jolliffe (G.R. No. L-9553, promulgated on May 30, 1959)
cited by appellant, does not support its contention that the circular in question
is a rule or regulation. What was there said was merely that a regulation may
be incorporated in the form of a circular. Such statement simply meant that the
substance and not the form of a regulation is decisive in determining its nature.
It does not lay down a general proposition of law that any circular, regardless of
its substance and even if it is only interpretative, constitutes a rule or
regulation which must be published in the Official Gazette before it could take
effect.
The case of People v. Que Po Lay (50 O.G. 2850) also cited by appellant is not
applicable to the present case, because the penalty that may be incurred by
employers and employees if they refuse to pay the corresponding premiums on
bonus, overtime pay, etc. which the employer pays to his employees, is not by
reason of non-compliance with Circular No. 22, but for violation of the specific
legal provisions contained in Section 27(c) and (f) of Republic Act No. 1161.
We find, therefore, that Circular No. 22 purports merely to advise employersmembers of the System of what, in the light of the amendment of the law, they
should include in determining the monthly compensation of their employees
upon which the social security contributions should be based, and that such
circular did not require presidential approval and publication in the Official
Gazette for its effectivity.
22
Whether or not the above provisions are applicable to the case at bar is the
lone issue in this petition which assails the resolution of the respondent
appellate court dated July 29, 1983.
The dispositive part of the questioned resolution reads:
WHEREFORE, notwithstanding the foregoing, in the broader
interest of justice and considering that under the present
Interim Rules a record on appeal is no longer necessary for
taking an appeal, the Court resolved to order the recall of the
records of this case from the Regional Trial Court of Palawan
Branch I, Puerto Princess for further proceedings before this
Court. (Rollo, pp. 12-13)
Following are the pertinent facts of the case as culled from the records.
Sometime in 1976, an action was filed by the petitioner before the Court of First
Instance of Palawan and Puerto Princess City, Branch IV where it was docketed
as Civil Case No. 35. The action sought authority from the court to demolish the
structures built by the private respondents alongside the rock causeway of the
petitioner's wharf. The complaint alleged, among others:
that the defendants' houses were constructed more than 3
years before the filing of instant action (par. 2, Complaint),:
that on August 19, 1974 the herein defendants undertook to
remove their structures on space where they were then at that
time and are presently standing, when it will be needed by the
government (par. 3, Ibid); that the space or area is needed by
the plaintiff for the docking or berthing of pumpboats
(motorized bancas) and fishing boats and for the loading and
unloading of cargoes along the pier on both sides thereof (par.
4, Ibid); and also to ease the congested traffic along it (par. 10,
Ibid); that his Excellency, President Ferdinand E. Marcos had
the Mayor of plaintiff-municipality to demolish and remove all
23
In view of the above order, the private respondents went to the appellate court
on certiorari. On June 9, 1979, the appellate court dismissed for lack of merit
CA G.R. SP-09389-R captioned "Jose Carino, et al., petitioners v. Mayor Ricardo
Lim and Hon. Benjamin Vega, Judge CFI, Palawan, Branch IV."
On May 15, 1979, after the main case had been submitted for decision as
aforestated, the private respondents filed a notice to take deposition which the
lower court disregarded for being "irrelevant and for other obvious reasons."
On October 10, 1980, the lower court rendered its decision, the dispositive
portion of which reads:
IN VIEW OF THE FOREGOING, judgment is hereby rendered in
favor of the plaintiff-municipality of Coron, Palawan and
against all the herein defendants as follows:
1. Dismissing the defendants'counterclaim for lack of merit;
2. Confirming the power of plaintiff-municipality and authority
of its incumbent mayor to demolish the defendants' structures
along the rock causeway or pier of Coron; and
3. Ordering the said defendants to remove their structures in
the area in question within thirty (30) days from receipt of this
decision and for their failure to do so, authorizing the herein
plaintiff represented by its incumbent mayor to demolish the
said structures at the expense of the said defendants.
Costs against all the defendants. (Rollo, pp. 28-29)
On appeal, the private respondents on February 2, 1982 were required "to
submit the forty (40) printed copies of their record on appeal together with the
proof of service of fifteen (15) copies thereof upon the appellee" within fifteen
(15) days from receipt of the notice of the appellate court's Acting Clerk of
Court regarding their appeal. (Rollo, p. 32)
Upon motion by the private respondents, the appellate court granted an
extension of sixty (60) days from April 7, 1982 within which the required printed
copies of the record on appeal may be submitted. However, despite the
extended period given, the private respondents were not able to comply with
the appellate court's requirement.
24
In a resolution dated July 19, 1982, the appellate court required the private
respondents to show cause why their appeal should not be dismissed for failure
to file the printed copies of the record on appeal.
decided. It is further contended that to allow its application would put no end to
those appealed cases which are otherwise considered as closed ones.
We find merit in the petitioner's contentions.
On August 31, 1982, the appellate court resolved to dismiss the private
respondents' appeal docketed as CA G.R. No. 69052-R for failure to file the
required record on appeal.
On December 6, 1982, the Acting Clerk of Court of the appellate court, in an
Entry of Judgment, certified that the above resolution dismissing the private
respondents' appeal had become final and executory on September 27, 1982.
Accordingly, on February 1, 1983, a writ of execution was issued to enforce the
October 10, 1980 decision of the Court of First Instance of Palawan and Puerto
Princesa City, Branch IV.
Before the Provincial Sheriff could proceed with the execution of the judgment,
the private respondents, in a motion dated April 12, 1983 asked the appellate
court that the records of the case be recalled from the court of origin. In their
supplemental motion, the private respondents argued that since under the
present law, printed records on appeal are no longer required, their right to be
heard on appeal must be upheld instead of the rule on technicalities.
In its opposition to the private respondents' motion, the Petitioner pointed out
that although the newly promulgated procedural rules invoked by the private
respondents may be given retroactive effect, their applicability only covers
pending actions and does not extend to those which had already become final
and executory.
As a consequence of the private respondents' motion to recall the records of
the case, a temporary restraining order dated April 29, 1983 was issued by the
appellate court directing the Provincial Sheriff of Palawan to desist from
executing the October 10, 1980 decision.
On July 29, 1983, the appellate court issued the disputed resolution. The
subsequent denial of the petitioner's motion for reconsideration prompted the
filing of this petition.
The petitioner maintains that the Interim Rules of Court promulgated on January
11, 1983 to implement the provisions of Batas Pambansa Bilang 29 cannot
apply to the case at bar for the simple reason that to revive or recall appealed
cases which had been dismissed or which had become final and executory
would cause a great injustice to those in whose favor these cases had been
25
SO ORDERED.
G.R. No. 97973 January 27, 1992
SPOUSES GAUVAIN and BERNARDITA BENZONAN, petitioners,
vs.
COURT OF APPEALS, BENITO SALVANI PE and DEVELOPMENT BANK OF
THE PHILIPPINES, respondents.
G.R. No. 97998 January 27, 1992
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and BENITO SALVANI PE, respondents.
Ruben E. Agpalo for Sps. Gauvain and Bernardita Benzonan.
Vicente R. Acsay for Benito Salvani Pe.
Thomas T. Jacobo for DBP.
26
ricemill and warehouse facilities, a solar drier, an office and residential building,
roadway, garden, depository, and dumping grounds for various materials.
When the private respondent failed to pay his loan after more than seven years
had passed, DBP foreclosed the mortgage on June 28, 1977. On that date, the
total obligation amounted to P1,114,913.34. DBP was the highest bidder.
Certificates of sale were issued in its favor; P452,995.00 was for the two lots
and P108,450.00 for the chattels. The certificate covering the disputed lot was
registered with the Registry of Deeds on January 24, 1978.
After the foreclosure sale, respondent Pe leased the lot and its improvements
from DBP for P1,500.00 a month. Part of the property was also leased by DBP to
the then National Grains Authority.
The respondent failed to redeem the property within the one year period. On
September 24, 1979 DBP sold the lot to the petitioner for P1,650,000.00
payable in quarterly amortizations over a five year period. The petitioners
occupied the purchased lot and introduced further improvements worth
P970,000.00.
On July 12, 1983, claiming that he was acting within the legal period given to
him to repurchase, respondent Pe offered in writing to repurchase the lot for
P327,995.00. DBP countered, however, that over the years a total of
P3,056,739.52 had already been incurred in the preservation, maintenance,
and introduction of improvements.
On October 4, 1983, Pe filed a complaint for repurchase under Section 119 of
Commonwealth Act No. 141 with the Regional Trial Court (RTC) of General
Santos City.
On November 27, 1986, the trial court rendered judgment. The dispositive
portion reads:
WHEREFORE, in view of the foregoing, the
Development Bank of the Philippines is ordered:
defendant
27
28
Only three months after getting the free patent and the original certificate of
title over the subject lot, it was mortgaged by respondent Pe to get a
commercial loan of nearly P1 million from DBP. Pe spent the proceeds of the
loan to construct permanent improvements on the lot for his rice-mill and other
businesses, i.e., two warehouse buildings; administration-residential building;
perimeter fence; solar and concrete drier; shed; machine shop; dirty kitchen;
and machineries and equipments such as ricemill (TSN, August 13, 1984, pp.
173-174). The entire lot has been converted to serve commercial and industrial
purposes. The testimony of petitioners Gauvain Benzonan on this score has not
been successfully challenged, viz:
Q. Out of this 2.6 hectares land area, how
much of this is devoted to the solar drier
construction?
A. The solar drier is about one thousand
(1,000) square meters . . . ah no, about six
thousand (6,000) square meters.
Q. What about the area occupied by the
warehouse and the ricemill complex?
A. The warehouse and ricemill complex is
occupying about one and a half (1 1/2)
hectares.
Q. What about the area occupied by the
residence as well as the roadways?
A. It covers about another half of a hectare
again, Sir.
Q. Is any part of this two point six hectares
devoted
to
agricultural
production
or
production of agricultural crops?
A. None whatsoever because the other
portion is occupied as a dumping area for our
waste materials. (TSN, PP. 361-362, Sept. 3,
1985).
The conversion of the lot for commercial purposes is understandable
considering that the heart of General Santos City developed in that area.
The respondent does not deny that, he is using the land for purely commercial
and industrial purposes. His explanation is that the land may be converted into
agricultural land in the future. He applies the Krivenko v.Register of Deeds of
Manila (79 Phil. 461 [1947]) ruling that lands not mineral or forest are
agricultural in nature and may be devoted to business purposes without losing
their agricultural classification.
Indeed, the records show that it was never the intention of respondent Pe to
utilize the land, given to him for free by the Government, for agricultural
purposes. He was not the kind of poor farmer for whom homesteads and free
patents were intended by the law.
As stated by the petitioners:
1. Respondent Pe acquired by free patent the land in question
with an area of 2.6064 hectares, which was issued Original
Certificate of Title No. P-2404 on November 24, 1969. Instead
of cultivating it for agricultural purposes, Pe mortgaged the
land, along with another land, on February 24, 1970, or only
three
(3)
months
from
issuance
of
OCT
No.
P-2404, with the DBP for P978,920.00. (par. 4, complaint,
Annex "A"). Pe testified that his purpose was to construct in
the land in question "bodega", an administration-residential
building, a perimeter fence, a concrete drier, and for some
machineries and equipment." (TSN, p. 95, June 22, 1984). He
stated that the improvements and facilities in the land
included "the warehouse, the ricemill and a big warehouse
housing the palay of stocks of the National Grains Authority
and an administration-residential building, a solar drier and a
perimeter fence and some sheds or garage . . . a small piggery
pen of several compartments, a dirty kitchen . . . a machine
shop." (TSN, pp. 173-174, August 13, 1984). Pe used the
property for such purposes and operated the ricemill business
for a period of about nine (9) years until September, 1979
(pars. 7 and 8, complaint, Annex "A"), without paying the DBP
of his mortgage indebtedness, as a result of which DBP
foreclosed the properties. (Annex "F")
2. Respondent Pe testified that the land in question with its
improvements has an appraised value of P1,347,860.00 in
1974, and P2,028,030.00 in 1976. (TSN, pp. 176, 177, August
13, 1984). Petitioner Gauvain Benzonan claimed it has a fair
market value, as of 1985, of P5,000,000.00. (p. 8, trial court
decision, Annex "F"). As against such value of the land and
29
public land which the State has gratuitously given to him"" and
expressly found by it to "find justification from the evidence of
record. . . ."
(a)
(b)
(c)
(d)
(e)
(f)
(g)
On June 22, 1984, when Pe testified, he said that "I own three
(3) residential lots," (TSN, p. 153, June 22, 1984) and that he
and his wife own in Antique Province "around twenty (20)
hectares planted to coconut and sugarcane" (ibid., p. 145); he
used to have 30 hectares of agricultural lands and 22
subdivision lots, which he sold to Norma Salvani and Carlos
Salvani. (TSN, pp. 166-169, June 22, 1984); Exhs. 1, 1-A, 1-B,
1-C, 3, 6, 6-A-Benzonan). (Rollo of G.R. No. 97973, pp. 17-19)
In the light of the records of these cases, we rule that respondent Pe cannot
repurchase the disputed property without doing violence to everything that CA
No. 141 (as amended) stands for.
We ruled in Simeon v. Pea, 36 SCRA 610, 617 [1970] through Chief Justice
Claudio Teehankee, that:
xxx xxx xxx
These findings of fact of the Court of Appeals that "(E)vidently,
the reconveyance sought by the plaintiff (petitioner) is not in
accordance with the purpose of the law, that is, "to preserve
and keep in the family of the homesteader that portion of
30
Case No. 280 on October 4, 1983 to enforce his right to repurchase the
disputed property, the Court of Appeals held that Pe exercised his right to
repurchase within the five-year period provided by Section 119 of CA 141 as
amended.
The respondent court cited Belisario, et al., v. Intermediate Appellate Court, et
al., 165 SCRA 101, 107 [1988] where we held:
. . . In addition, Section 119 of Commonwealth Act 141
provides that every conveyance of land acquired under the
free patent or homestead patent provisions of the Public Land
Act, when proper, shall be subject to repurchase by the
applicant, his widow or legal heirs within the period of five
years from the date of conveyance. The five-year period of
redemption fixed in Section 119 of the Public Land Law of
homestead sold at extrajudicial foreclosure begins to run from
the day after the expiration of the one-year period of
repurchase allowed in an extrajudicial foreclosure. (Manuel v.
PNB, et al., 101 Phil. 968) Hence, petitioners still had five (5)
years from July 22, 1972 (the expiration of the redemption
period under Act 3135) within which to exercise their right to
repurchase under the Public Land Act.
As noted by the respondent court, the 1988 case of Belisario reversed the
previous rulings of this Court enunciated in Monge, et al., v. Angeles, et al., 101
Phil. 563 [1957] and Tupas v. Damasco, et al., 132 SCRA 593 [1984] to the
effect that the five year period of repurchase should be counted from the date
of conveyance or foreclosure sale. The petitioners, however, urge
that Belisario should only be applied prospectively or after 1988 since it
established a new doctrine.
We sustain the petitioners' position. It is undisputed that the subject lot was
mortgaged to DBP on February 24, 1970. It was acquired by DBP as the highest
bidder at a foreclosure sale on June 18, 1977, and then sold to the petitioners
on September 29, 1979.
At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141
as amended was that enunciated inMonge and Tupas cited above. The
petitioners Benzonan and respondent Pe and the DBP are bound by these
decisions for pursuant to Article 8 of the Civil Code "judicial decisions applying
or interpreting the laws or the Constitution shall form a part of the legal system
of the Philippines." But while our decisions form part of the law of the land, they
are also subject to Article 4 of the Civil Code which provides that "laws shall
have no retroactive effect unless the contrary is provided." This is expressed in
31
the familiar legal maxim lex prospicit, non respicit, the law looks forward not
backward. The rationale against retroactivity is easy to perceive. The
retroactive application of a law usually divests rights that have already become
vested or impairs the obligations of contract and hence, is unconstitutional
(Francisco v. Certeza, 3 SCRA 565 [1961]).
The same consideration underlies our rulings giving only prospective effect to
decisions enunciating new doctrines. Thus, we emphasized in People
v. Jabinal, 55 SCRA 607 [1974] ". . . when a doctrine of this Court is overruled
and a different view is adopted, the new doctrine should be applied
prospectively and should not apply to parties who had relied on the old doctrine
and acted on the faith thereof."
There may be special cases where weighty considerations of equity and social
justice will warrant a retroactive application of doctrine to temper the
harshness of statutory law as it applies to poor farmers or their widows and
orphans. In the present petitions, however, we find no such equitable
considerations. Not only did the private respondent apply for free agricultural
land when he did not need it and he had no intentions of applying it to the
noble purposes behind the law, he would now repurchase for only P327,995.00,
the property purchased by the petitioners in good faith for P1,650,000.00 in
1979 and which, because of improvements and the appreciating value of land
must be worth more than that amount now.
The buyers in good faith from DBP had a right to rely on our rulings
in Monge and Tupas when they purchased the property from DBP in 1979 or
thirteen (13) years ago. Under the rulings in these two cases, the period to
repurchase the disputed lot given to respondent Pe expired on June 18, 1982.
He failed to exercise his right. His lost right cannot be revived by relying on the
1988 case of Belisario. The right of petitioners over the subject lot had already
become vested as of that time and cannot be impaired by the retroactive
application of the Belisarioruling.
Considering our above findings, we find no need to resolve the other issues
raised by the petitioners in their petitions.
WHEREFORE, the questioned decision of the respondent court is hereby
REVERSED and SET ASIDE. The complaint for repurchase under Section 119 of
Commonwealth Act No. 141 as amended is DISMISSED. No pronouncement as
to costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-37914
32
favorable to the petitioner than the same degree of penalty imposed by article
534, paragraph 3, of the former Penal Code cited above.
account, in order to give retroactive effect to article 22, cited above of the
Revised Penal Code for the benefit of the petitioner herein.
As we have seen, the aforesaid petitioner was sentenced to one year, eight
months, and twenty-one days ofpresidio correccional, to pay an indemnity of
P647.70, and to suffer subsidiary imprisonment in case of insolvency, which is
the minimum of the medium degree (from one year, eight months, and twentyone days to two years, eleven months, and ten days) of the penalty of presidio
correccional in the minimum and medium degrees (from six months and one
day to four years and two months), prescribed by article 534, paragraph 3, of
the old Penal Code, as amended by Act No. 3244. The penalty provided in
article 315, paragraph 3, of the Revised Penal Code for the same crime
is arresto mayor in the maximum degree to prision correccional in the minimum
degree, that is, four months and one day to two years and four months, which
is more lenient than that provided in the old Penal Code. Taking into account
the mitigating circumstance of voluntary confession of guilt, without any
aggravating circumstance to offset it, the penalty provided in the Revised Penal
Code must be imposed in the minimum degree, that is, four months and one
day to one year (article 80, paragraph 2, of the old Penal Code, and article 64 of
the Revised Penal Code), and inasmuch as it is the practice of Courts of First
Instance in the exercise of their discretion (article 81, paragraph 7, as amended
by section 1 of Act No. 2298) to fix the penalty in the minimum period, and the
trial court having fixed the penalty imposed upon the petitioner in the minimum
period of the medium degree, we must also fix it accordingly, that is, four
months and one day of arresto mayor, which is the minimum period of the
minimum degree of the penalty provided by the Revised Penal Code.
ART. 22. Retroactive effect of penal laws. Penal laws shall have a
retroactive effect in so far as they favor the person guilty of a felony,
who is not a habitual criminal, as this term is defined in rule 5 of article
62 of this Code, although at the time of the publication of such laws a
final sentence has been pronounced and the convict is serving the
same.
As the provisions of the aforementioned Revised Penal Code with reference to
the crime of estafa here in question are more favorable to the said petitioner,
and as the latter is not habitual criminal, the more lenient penalty provided in
the Revised Penal Code must be imposed upon him.
The second question to decide is whether or not in habeas corpus proceedings
the mitigating circumstance of voluntary confession of guilt established for the
first time in article 13, paragraph 7, of the Revised Penal Code, can be taken
into consideration.
The mitigating circumstances, as their name indicates, serve to lessen the
penalty fixed by law, and whenever they are present courts are bound to take
them into consideration, according to article 77, in connection with article 80,
paragraph 3, of the old Penal Code, and article 62, in connection with article 64,
paragraph 2, of the Revised Penal Code.
In the present case, the trial court could not legally take into account the
mitigating circumstance of voluntary confession of guilt, established in article
13, paragraph 7, of the new Penal Code, because it did not exist in the old
Penal Code under which the petitioner herein was prosecuted and sentenced.
Article 22 of the Revised Penal code, above quoted, extends its benefits even to
convicts serving sentence, and the only legal remedy open to them to make
use of such benefits is the writ of habeas corpus, inasmuch as, if the penalty
imposed upon them under the former penal law was decreased by the revised
code, and the latter has retroactive effect, the excess has become illegal. Now
then, it appearing from the sentence that there was a voluntary confession of
guilt, and that it has served as the basis of conviction, and taking into
consideration that had such circumstance been classified by the old Penal Code
as a mitigating circumstance, the trial court would have been bound to give it
effect, could we now disregard it without failing in our duty in order to give
effect to the positive provisions of the law which make all penal laws retroactive
in so far as they favor the accused, who is not an habitual criminal, there being
no necessity to review the proceeding? In the case before us, the voluntary
confession of guilt appears in the sentence and has served as the basis of the
defendant's conviction by the trial court; for which reason we must take it into
The herein petitioner having already served seven months and twenty-nine
days of imprisonment, as against the penalty of four months and twenty-one
days, with all possible allowances, in accordance with the Revised Penal Code,
he has already more than served his sentence and is entitled to be released
immediately.
For the foregoing considerations, we are of opinion and hold that when in a
sentence of conviction it appears that the defendant voluntarily confessed his
guilt in court before the prosecution has presented its evidence, such voluntary
confession shall be taken into account in a petition for habeas corpus to give
effect to article 22 of the Revised Penal Code.
Wherefore, the herein petitioner being illegally detained, the petition is granted
and the respondent Director of Prison is hereby ordered to set him at liberty
immediately, without special pronouncement of costs. So ordered.
Avancea, C.J., Villamor, Abad Santos, Imperial and Butte, JJ., concur.
33
Separate Opinions
MALCOLM, J., dissenting:
We stand squarely on the proposition that, after a court having jurisdiction of a
criminal case has rendered a final judgment in that case and the convict has
begun to serve his sentence in conformity with that judgment, the courts can
not, in habeas corpus proceedings, enter upon a review of the decision or
record to determine if a mitigating circumstance should be taken into account
in order to obtain a reduction of the penalty and the liberation of the convict.
Habeas corpus lies only to determine the question of the jurisdiction and lawful
power of the custodian to hold the petitioner in custody, and is not available as
a revisory remedy for the correction of errors either of law or fact. (29 C. J.,
25; Trono Felipe vs. Director of Prisons [1913], 24 Phil., 121.) The Revised Penal
Code provides that felonies and misdemeanors committed prior to the date of
effectiveness of this Code shall be punished in accordance with the code or acts
in force at the time of their commission, while retroactive effect may only be
given to the Revised Penal Code for the benefit of the person guilty of a felony
who is not a habitual criminal to determine the proper penalty as found under
the old Penal Code and to contrast with it the penalty corresponding to the
crime under the Revised Penal Code. But if the courts are to scrutinize the
decision and the record to ascertain if mitigating circumstances now found for
the first time in the Revised Penal Code are to be given effect, the courts will
embark upon unchartered seas and unutterable confusion will result. We
believe that the court should not now revise a final judgment by inserting in
that judgment a finding relating to a mitigating circumstance, thus permitting
the liberation of the accused. As a consequence, our vote is for the denial of
the writ.
EN BANC
[G.R. No. 125539. July 27, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO PATALIN,
JR., ALEX MIJAQUE, AND NESTOR RAS, accused-appellants.
DECISION
MELO, J.:
Accused-appellants Alex Mijaque and Alfonso Patalin, Jr. were charged
before Branch 25 of the Regional Trial Court of the 6th Judicial Region stationed
in Iloilo City, with the crime of robbery. * The Amended Information dated
October 11, 1985 charged:
34
Five Hundred (P6,500.00) Pesos, against the will and/or consent of the owner;
that on the occasion thereof, the above-named three (3) accused, conspiring
and working together with their companions who are still at large, by means of
force and intimidation, did then and there wilfully, unlawfully and feloniously
have sexual intercourse with Perpetua Carcillar, Juliana Carcillar, Rogelia
Carcillar and Josephine Belesario, against their will and consent.
CONTRARY TO LAW.
Criminal Case No. 18305
(pp. 90-91, II Record.)
Upon arraignment on November 12, 1985, accused-appellants entered a
plea of not guilty to both crimes charged (p. 103, II Record).
After trial on the merits, a joint judgment was rendered, disposing:
Wherefore, premises considered there being sufficient and satisfactory proof
showing that the accused in these two cases are guilty beyond reasonable
doubt of the charges filed against them, they are hereby sentenced as follows:
a) In Crim. Case No. 18376 for Robbery with Physical Injuries, accused Alfonso
Patalin, Jr. and Alex Mijaque are penalized to suffer the indeterminate penalty of
imprisonment of Ten (10) years, and One (1) day of Prision Mayor, as minimum,
to Seventeen (17) years and Four (4) months of Reclusion Temporal, as
maximum, to indemnify Corazon Aliman the amount of P700.00 representing
the value of her property robbed from her and also to indemnify Reynaldo
Aliman the amount of P8,000.00 representing the expenses he incurred for his
medication and hospitalization due to the wounds he suffered.
b) In Criminal Case No. 18305 for Robbery with Multiple Rapes, accused Alfonso
Patalin, Jr., Alex Mijaque and Nestor Ras are sentenced to a death penalty and
to indemnify the members of the Carcillar family the amount of P6,500.00
representing the cash and articles taken from them.
In both cases the accused are also ordained to pay the costs.
SO ORDERED.
(p. 80, Rollo.)
The trial court arrived at the aforestated conclusion based on the following
findings:
35
At about 7:30 in the evening of August 11, 1984, while Reynaldo Aliman, his
half sister Josephine Belisario, and their mother Corazon Aliman were having a
conversation inside their house at Barangay Lumanay, municipality of
Lambunao, province of Iloilo, appellant Alfonso Patalin, Jr., who was outside the
fenced perimeter of said house, called out Reynaldo Aliman by his nickname
and asked the latter to let him and the other persons with him in (pp. 5-6, TSN,
Dec. 16, 1986).
Reynaldo Aliman opened the window and, because of the moonlight, saw
appellant Alfonso Patalin, Jr. with (2) other persons. Appellant Alfonso Patalin, Jr.
asked again Reynaldo Aliman to let them in (pp. 7-8, ibid.). Reynaldo Aliman
opened the gate and Alfonso Patalin together with his companions, one of
whom is appellant Alex Mijaque, entered the premises (pp. 8, 10-11,
ibid.). Immediately upon entering, appellant Alfonso Patalin, Jr. pointed the
beam of his flashlight at Reynaldo Aliman. At this juncture, appellant Alex
Mijaque hacked Reynaldo Aliman twice with a bolo hitting the latter at the neck,
right arm, and the chest (pp. 14-16, ibid.). Thereupon, Reynaldo Aliman
immediately ran away (p. 17, ibid.).
Corazon Aliman and Josephine Belisario, who went to the balcony of their
house, witnessed the hacking incident and the former shouted for help (p. 6,
TSN, July 21, 1987; pp. 8-9, TSN, June 30, 1988). Two of the assailants, one of
whom is appellant Alex Mijaque, pushed Corazon Aliman and Josephine
Belisario inside their house, covered their mouth and told them not to make any
noise. Later, appellant Alex Mijaque dragged Josephine Belisario to the house of
the latters aunt (sister of Corazon Aliman) which is beside their house. The
other man stayed put and while holding a double-bladed knife, threatened to
kill Corazon Aliman if the latter will not give him money. After Corazon Aliman
gave him three hundred pesos (P300.00) cash, he ransacked the house and
took one (1) wrist watch, one (1) vise grip, one (1) screw driver, one (1) pair of
Levis trousers, one (1) travelling bag, and one (1) wallet containing ten pesos
(P10.00); the total value thereof is seven hundred pesos (P700.00) inclusive of
the three hundred pesos (P300.00) cash. Thereafter, the man also dragged
Corazon Aliman to her sisters house (pp. 6-8, TSN, July 21, 1987; pp. 11-12,
TSN, June 30, 1988).
Josephine Belisario, who was dragged by Alex Mijaque to her aunts house which
is just twenty (20) meters away, saw six (6) persons, one of whom is appellant
Alfonso Patalin, Jr., outside the house of her aunt. Josephine Belisario was forced
to call out her aunts name and ask that the door be opened for her. While the
door was being opened, it was kicked by one of the six (6) persons. Alfonso
Patalin immediately went in, boxed the aunt of Josephine Belisario on the body
and announced that they are staging a hold-up. The other companions of
appellant Alfonso Patalin, Jr., including appellant Alex Mijaque, who were armed
with knives, a bolo, and a gun also went in and restrained Josephine Belisarios
cousins, namely Rogelia, Juliana, Perpetua, Roy, and Victoriano, who are all
surnamed Carcillar (pp. 11-15, TSN, June 30, 1988; p. 11, TSN, June 29,
1989). Josephine Belisario together with her aunt and cousins were all forced to
lie face down on the floor of the sala (p. 15, TSN, June 30, 1988; p. 7, TSN, Feb.
15, 1990). Appellant Alfonso Patalin got hold of Mrs. Carcillar (Josephine
Belisarios aunt and the mother of her cousins), kicked and boxed the latter and
exclaimed: Money, money. It is money we want. Appellant Alfonso Patalin forced
Mrs. Carcillar into a room where the latter gave him money (p. 16, TSN, June
30, 1988; pp. 7-8, February 15, 1990). Then, appellants and their companions
seized the following personalities of the Carcillars: (1) one Seiko 5 wristwatch
worth three thousand pesos (P3,000.00), (2) two (2) pairs of ladys rings worth
two thousand (P2,000.00), (3) one (1) pair of earrings, and (4) two (2) travelling
bags (p. 9, TSN, February 15, 1990).
Rogelia Carcillar was brought outside their house by appellant Alex Mijaque who
was armed with a butchers knife and threatened to kill her if she will not lie
down. Because of fear, she did as she was told (pp. 10, 16-17, TSN, February
15, 1990). Appellant Alex Mijaque forcibly removed her underwear and placed
himself on top of Rogelia. She tried to resist but appellant Alex Mijaque pressed
the tip of his knife at the formers neck and succeeded in having sexual
intercourse with her (pp. 11-12, ibid.). Thereafter, appellant Alex Mijaque
brought her inside the house and ordered her to lie face down on the floor
again (pp. 13-14, ibid.). Then, one of the companions of appellant Alex Mijaque
who was armed with a gun took her outside and brought her to a place not far
from where she was raped (p. 14, ibid.). This man, at the point of a gun,
threatened to kill her if she will not obey his orders. Rogelia Carcillar, who
feared for her life, was left with no choice but to obey the mans orders. There,
she was raped for the second time by this gun-wielding man (pp. 15-16,
ibid.). While Rogelia Carcillar was being raped, appellant Alfonso Patalin was
also outside the house standing on guard (p. 18, ibid.).
Juliana Carcillar was likewise brought outside the house by appellant Alex
Mijaque who, with his knife, tried to rape her but he initially failed because of
her resistance. This angered appellant Alex Mijaque and he tried to kill Juliana
Carcillar by stabbing the latter but was prevailed upon not to do so by one of
his companions (pp. 12-15, TSN, June 29, 1989).
Appellant Alex Mijaque, after delivering fist blows on the body of Juliana
Carcillar, turned her over to one of his companions who was in the garden
outside the house and armed with a gun. This man threatened her with the gun
and mauled her. She was overpowered and he undressed her. He inserted his
finger on her sex organ and eventually succeeded in having sexual intercourse
with her (pp. 15-17, ibid.). Then, this companion of appellant Alex Mijaque
brought Juliana Carcillar back inside the house and ordered to look for
money. When she told him that they have no more money, he kept on harming
36
her. In the course thereof, he found and took a Seiko wristwatch owned by
Perpetua Carcillar. Then, he brought her outside the house again where he had
a brief conversation with appellants Nestor Ras and Alfonso Patalin. She was
then brought back inside the house and ordered to lie face down on the floor
again. While at this position, appellant Alex Mijaque approached her and
brought her outside the house.She refused to obey appellant Alex Mijaques
order to lie down on the ground so he pushed her downwards. Her strength
gave out and he succeeded in raping her twice. She was then brought back
inside the house (pp. 18-21, TSN, June 29, 1989).
Josephine Belisario, while laying face down on the floor of the sala, was
dragged by appellant Alex Mijaque inside one of the rooms. He threatened her
with his knife and was able to undress her. He fondled her breasts, pulled her
pubic hair and eventually succeeded in having sexual intercourse with her. She
was then left inside the room. Two companions of appellant Alex Mijaque came
in bringing with them her cousins Rogelia and Perpetua Carcillar. One of them
saw Josephine Belisario and brought her to another room. The man demanded
money from her but she was not able to give him money. The man was also
carrying a knife and threatened her with the same. She resisted when he was
forcing her to lie down on the bed but her strength finally gave out. He likewise
succeeded in having sexual intercourse with her. After raping her, the man took
a piggy bank which was at the foot of the bed and brought her back to the
room where she was first raped. Her aunt and cousins were also inside the said
room (pp. 17-25, TSN, June 30, 1988).
Perpetua Carcillar suffered the same fate. While laying face down on the floor of
the living room, she was pulled by the heir by appellant Alfonso Patalin and
ordered to stand up. When she stood up, she realized that her sister were no
longer there. Appellant Alfonso Patalin, armed with a double-bladed knife,
brought her outside the house, ordered her to undress and lie down. Because of
fear, Perpetua Carcillar, who was then only thirteen (13) years old, obeyed
appellant Alfonso Patalin. He tried to force his penis into her vagina but did not
succeed. Then, appellant Alfonso Patalin handed her over to appellant Nestor
Ras, a member of their group who was only about two (2) arms length
away. Appellant Nestor Ras, armed with a double-bladed knife which he was
pointing at Perpetua Carcillar, ordered her to lie down. He fondled her breasts,
kissed her, and succeeded in having sexual intercourse with her. After raping
her, appellant Nestor Ras brought her back inside the house. When she was
returned inside the house, the intruders were still demanding for money from
her mother and were taking turns in beating the latter (pp. 4, 15-23, TSN, July
12, 1990).
Appellants left, together with the other assailants, taking with them the
valuables stated earlier after threatening them not to report the matter to the
police or else they will return and kill all of them (p. 19, TSN, February 15,
1990).
Reynaldo Aliman was brought to Ricardo Ladrido Memorial Hospital where he
received first aid. He was then brought to West Visayas Medical Center located
in Manduriao, Iloilo (pp. 18-20, TSN, December 16, 1986) and was treated by
Dr. Edgardo Carmelo (p. 4, TSN, May 14, 1986). Reynaldo Aliman sustained the
following injuries: (1) hack wound, mid forearm, area ulnar side middle third
forearm, and (2) hack wound, left side of neck (pp. 5-6, ibid; Exhibit
A). Reynaldo Aliman was confined in the hospital for almost three (3) months
and he spent more than eight thousand pesos (P8,000.00) for medicines, food
and other expenditures (p. 19, TSN, December 16, 1986).
Dr. Leticia Sitchon Santiago examined and treated Josephine Belisario two days
after she was raped. A hematoma, about 3x4 inches in diameter, was found on
the left shoulder of Josephine Belisario which could have been caused by
forcing the latter to lie down on the ground. Josephine Belisario vagina admits
two (2) fingers. Further, hematoma was noted in the hymen at nine oclock and
three oclock positions and fresh lacerations was also noted at nine, eleven, and
three oclock positions. These are indications that a foreign object, which could
be a human penis, was inserted in the vagina and caused the lacerations of the
hymen (pp. 6-9, TSN, September 3, 1986).
Rogelia Carcillar, Juliana Carcillar and Perpetua Carcillar were also examined
and treated by Dr. Leticia Santiago but such was conducted three days after the
incident (p. 17, ibid).
A hematoma was noted in the occipital region of the head of Rogelia Carcillar
(p. 18, ibid). Her vagina admits two fingers snugly and the perineum has a
lacerated wound which is one centimeter in length (pp. 18-19, ibid; pp. 2-3,
TSN, November 10, 1986). Fresh lacerations were likewise noted in her hymen
at eight, eleven and three oclock positions (p. 3, TSN, November 10, 1986). Dr.
Santiago further testified that a foreign object was inserted in the vagina of
Rogelia Carcillar (p. 19, TSN, September 3, 1986; p. 3, TSN, November 10,
1986).
Juliana Carcillar, 22 years old, sustained a hematoma in the forehead, left and
right side of the face, upper right arm, uppermost and lower portions of the left
thigh, occipital region of the head and left side of the mouth. She also sustained
the following injuries: (1) cm. lacerated wound on the left side of the lower lip,
(2) bite mark with hematoma on the left shoulder, (3) 1 cm. incised wounds on
the right index finger and right thumb, (4) 4 inches incised wound on the right
forearm, and (5) multiple abrasions at the back including the portion below the
waistline, her vagina admits two fingers and fresh lacerations in the hymen
37
were noted at eight, eleven, and four oclock positions (pp. 10-15, TSN,
November 10, 1986).
given by Rogelia Carcillar who merely narrated the robbery but did not report
any rape.
Nestor Ras
The third accused-appellant, Nestor Ras, argues that his name was never
mentioned by Dr. Edgardo Carmelo, and that Josephine Belisario was merely led
by the public prosecutor into mentioning his name. He also states that the
witnesses declarations as regards his identification are confusing and
inconsistent (pp. 208-210, Rollo).
Further, it is contended that Rogelio Carcillar himself, when asked by the
public prosecutor about what happened to his sister Perpetua Carcillar, testified
that Nothing happened to them (p. 210, id). And when Perpetua Carcillar and
the other female prosecution witnesses reported the alleged incident to the
police authorities, they never mentioned that they were raped.
As mentioned, all three accused-appellants, aside from denying the
charges, also presented their respective alibis. Accused-appellant Patalin
testified that he was at home with his parents, wife, and children, at Pandan,
Lambunao (tsn, August 13, 1993, pp. 16-17) at the time of the incident. As
corroborative witness, he presented Felizardo Lebona, the person in charge of
the plantation where he was working, who testified that accused-appellant
Patalin did not leave the plantation house from August 9 to 12, 1984 (tsn,
October 15, 1993, pp. 4-5).
For his part, accused-appellant Mijaque insists that he had no opportunity
to get out of the farm where he was working which was located in Manduriao,
Iloilo (tsn, May 6, 1993, p. 6). In July, 1985, he was arrested for theft of a
38
television set and detained in the Lambunao jail for investigation. Although
three of the herein complainants were brought in front of his detention cell, he
was not identified. Instead, the policemen pointed to him and said, That is Alex
Mijaque who raped you. If you will not include him, he will file a case against
you. Moreover, he testified that he was mauled in jail (tsn, July 29, 1993, pp.
10-13). Defense witness, Alejandro Tabucan, neighbor of accused-appellant
Mijaque, corroborated the latters alibi that on August 11, 1984, they had a
drinking spree from 6 oclock in the evening to 12 oclock midnight, and accusedappellant Mijaque was not able to leave the premises in Manduriao. Tabucan
also said that he saw Mijaque still asleep the following morning (tsn, August 6,
1993, pp. 4-5, 10).
Lastly, accused-appellant Nestor Ras declared that he was in the province
of Antique (particularly, in Igbangkal, Dao) on August 11, 1984 (tsn, December
17, 1993, p. 4). As corroborative witness, he presented Cristina Gumban, a
vendor who testified that on August 11, 1984, she bought cassava and sweet
potatoes from accused-appellant Ras in Igbangkal, Dao, Antique from 3 oclock
to 5 oclock in the afternoon, and that he saw Ras put the purchased items in a
sack (tsn, March 4, 1994, p. 4).
We are not persuaded by the above posturings and are compelled to
affirm.
Of primordial consideration in appellate matters is the legal principle that
the assessment of the credibility of witnesses and their testimony is a matter
best undertaken by the trial court because of its unique opportunity to observe
the witnesses firsthand and to note their demeanor, conduct, and attitude
under grilling examination (People vs. Ombrog, 268 SCRA 93 [1997]). We
generally uphold and respect this appraisal since, as an appellate court, we do
not deal with live witnesses but only with the cold pages of a written record
(People vs. Herbieto, 269 SCRA 472 [1997]).
A close examination of the record convinces us of the prosecution
witnesses credibility, particularly the ravished victims, who, for approximately
two agonizing hours, were subjected to a hellish nightmare occurring in the
very privacy of their own homes.
As pointed out by the Office of the Solicitor General in its consolidated
brief, the defense was not able to prove any motive on the part of the private
complainants to falsely testify that they were robbed and raped by accusedappellants. In fact, two of the rape victims, Josephine Belisario and Rogelia
Carcillar, were even married to first cousins of accused-appellant Patalin (pp.
327-328, Rollo), and would not ordinarily turn against a relative although this
be by mere affinity unless they really suffered the fate they narrated.
39
evening on August 11, 1984. More importantly and damming yet is the positive
identification of their presence thereat by the victims.
The trial court correctly appreciated the aggravating circumstances of
nighttime and dwelling in Criminal Case No. 18376 considering that nighttime
facilitated the commission of the crime and the evidence shows that accusedappellants took advantage of the darkness to successfully consummate their
plans (People vs. Apduhan, Jr., 24 SCRA 798 [1968]). Dwelling is clear from the
abuse of confidence which the victims reposed in the offenders by opening the
door to them, as well as the violation of the sanctity of privacy in the victims
homes. He who goes to anothers house to slander him, hurt him, or do him
wrong, is more guilty than he who offends him elsewhere (Reyes, The Revised
Penal Code Criminal Law, Vol. I, 1993 ed., citing the dissenting opinion of Justice
Villareal in People vs. Ambis, 68 Phil. 635 [1939] and Viada, 5th ed., Vol. II, pp.
323-324). We further affirm the trial courts finding on the presence of the
aggravating circumstance of band considering that Reynaldo Aliman testified
that accused-appellants Patalin and two other companions (one of whom was
later identified as accused-appellant Mijaque) entered his home (tsn, p. 7, Dec.
16, 1986). This was corroborated by Josephine Belisario who even saw four (4)
persons enter their gate, one of whom was accused-appellant Patalin (tsn, p.
10, June 30, 1988). These same aggravating circumstances likewise attended
the commission of the crime of robbery with multiple rape in Criminal Case No.
18305 and this was clearly testified to by the victims thereof who stated that
five persons, including accused-appellant Patalin, armed with a bolo, a knife,
and a long gun, entered their dwelling that unfortunate night (tsn, June 29,
1989, p. 10; February 15, 1990, p. 5).
With respect to accused-appellants Patalin and Mijaques defense that they
were arrested without warrants, suffice it to say that any objection, defect, or
irregularity attending an arrest must be made before the accused enters his
plea (Padilla vs. CA, 269 SCRA 402 [1997]). As correctly pointed out in
the Peoples consolidated brief, the record shows no objection was ever
interposed prior to arraignment and trial (p. 324, Rollo).
It is indubitable that there was conspiracy in the commission of the crimes
in both Criminal Cases No. 18376 and 18305. In the first criminal case, the
evidence clearly shows that accused-appellants Patalin and Mijaque, together
with unidentified companions, committed the crime charged. Said culprits
shared the common criminal objective of robbing the victims and inflicting
wounds upon Reynaldo Aliman on the occasion of the robbery. In the second
case, all three accused-appellants (together with unidentified companions),
who were positively identified by the victims themselves, undoubtedly had the
common criminal design of robbing the household of Jesusa Carcillar, and of
committing multiple rape on the occasion of the robbery. Accused-appellant
Mijaque dragged Josephine Belisario to her aunts house and the other culprits
40
41
has he a vested right in the continued existence of a statute which precludes its
change or repeal, nor in any omission to legislate on a particular
matter. However, a subsequent statute cannot be so applied retroactively as to
impair a right that accrued under the old law (Agpalo, Statutory Construction,
1986 ed., p. 264, citing Benguet Consolidated Mining Co. vs. Pineda, 98 Phil
711 [1956]; Laurel vs. Misa, 76 Phil 372 [1946]). Courts have thus given
statutes strict construction to prevent their retroactive operation in order that
the statutes would not impair or interfere with vested or existing rights. Clearly,
accused-appellants right to be benefited by the abolition of the death penalty
accrued or attached by virtue of Article 22 of the Revised Penal Code. This
benefit cannot be taken away from them.
Since the retroactive application of a law usually divests rights that have
already become vested (Benzonan vs. Court of Appeals, 205 SCRA 515 [1992]),
the rule in statutory construction is that all statutes are to be construed as
having only a prospective operation unless the purpose and intention of the
legislature to give them a retrospective effect is expressly declared or is
necessarily implied from the language used (Balatbat vs. Court of Appeals, 205
SCRA 419 [1992]).
By analogy, we apply the rule in labor law which provides that benefits
accruing to workmen under the old law cannot be taken away from them by a
succeeding law. In the case at bar, there is greater reason to apply this
principle since the very taking of life is involved and is at issue.
As regards accused-appellants civil liability, the trial court, in Criminal
Case No. 18376, correctly awarded P700.00 to Corazon Aliman representing the
total value of the cash and personal property forcibly taken, and P8,000.00 to
Reynaldo Aliman representing expenses incurred for medication and
hospitalization. However, in Criminal Case No. 18305, the trial court failed to
order indemnification for the multiple rapes. Thus, in line with the
pronouncement in People vs. Victor (G.R. No. 127903, July 9, 1998) wherein we
said:
One other point of concern has to be addressed. Indictments for rape continue
unabated and the legislative response has been in the form of higher
penalties. The Court believes that, on like considerations, the jurisprudential
path on the civil aspect should follow the same direction. Hence, starting with
the case at bar, if the crime of rape is committed or effectively qualified by any
of the circumstances under which the death penalty is authorized by the
present amended law, the indemnity for the victim shall be in the increased
amount of not less than P75,000.00. this is not only a reaction to the apathetic
societal perception of the penal law and the financial fluctuations over time, but
42
also an expression of the displeasure of the Court over the incidence of heinous
crimes against chastity.
accused-appellants should be made to pay P375,000.00 as indemnification for
five counts of rape (considering that Juliana Carcillar was twice raped by
accused-appellant Mijaque) in addition to the sum of P6,500.00 representing
the value of the cash and articles that were taken from the victims. In line with
the recent ruling in People vs. Prades (G.R. No. 127569, July 30, 1998), moral
damages in the amount of P50,000.00 for each count of rape, or a total of
P250,000.00 is likewise awarded. Lastly, so that the instant case may serve as
an object lesson to the public, exemplary damages in the amount of P10,000
per count of rape is further awarded (People vs. Burce, 269 SCRA 293 [1997]).
Because of the findings of conspiracy, accused-appellants Patalin and
Mijaque are jointly and severally liable for the amounts awarded in Criminal
Case No. 18376; whereas all three accused-appellants are solidarily liable for
the amounts awarded in Criminal Case No. 18305.
WHEREFORE, finding the conviction of accused-appellants justified by the
evidence on record, the Court hereby AFFIRMS said judgment, with the
following modifications:
(a) In Criminal Case No. 18376, for purposes of the Indeterminate
Sentence Law, considering that the aggravating circumstances of band,
nighttime, and dwelling attended the commission of the crime, accusedappellants Patalin and Mijaque are hereby sentenced to an indeterminate
penalty ranging from six (6) years of prision correccional, as minimum, to
fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as
maximum;
(b) Accused-appellants Patalin and Mijaque are jointly and severally held
liable for the amounts awarded by the trial court in said criminal case,
particularly, the amount of P700.00 representing the total value of the cash and
articles taken from Corazon Aliman, and P8,000.00 representing the expenses
incurred by Reynaldo Aliman for medication and hospitalization;
(c) In Criminal Case No. 18305, the penalty imposed is reduced
to reclusion perpetua; and
(d) Aside from the amount of P6,500.00 already awarded by the trial court
to the Carcillar family representing the value of the cash and articles taken, the
victims in Criminal Case No. 18305 are hereby awarded an additional P75,000
as indemnity for each count of rape, P50,000.00 for each count of rape as
moral damages, and P10,000 for each count of rape as exemplary damages, for
which amounts all three accused-appellants are jointly and severally liable.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 79576 August 3, 1988
CELSO M. LARGA, petitioner,
vs.
HON. SANTIAGO RANADA JR., Presiding Judge, Regional Trial Court of
Makati, Branch 137, ASSISTANT FISCAL EDWIN CONDAYA, Prosecuting
Fiscal of Branch 137, and HOME DEVELOPMENT MUTUAL
FUND,respondents.
Ariel M. Los Bahos for petitioner.
Florentino C. de los Santos and Celso Fernandez III for respondents.
FELICIANO, J.:
This is a Petition for Certiorari, Prohibition and mandamus with Preliminary
Injunction seeking to set aside the orders of respondent Judge dated 9 June
1987 and 24 June 1987 denying, respectively, petitioner Larga's Motion to
Quash and his Motion for Reconsideration of the order denying his Motion to
Quash, in Criminal Case No. 29102.
Petitioner Celso M. Larga, one of the owners and operators of the "Bistcor
Diesel Calibration Service," issued in favor of respondent Home Development
Mutual Fund ("HDMF") Security Bank & Trust Company Check No. 225466 in the
amount of P3,840.00 as payment of the employer-employee contributions to
the Pag-Ibig Fund pertaining to the period from January to April 1984. The check
was, however, dishonored for being stale when it was presented for payment by
the drawee bank. Demand was made upon petitioner Larga to replace the
dishonored check or otherwise to pay the amount thereof in full, but he failed
and refused to comply.
43
It turns out that petitioner Larga failed to remit to the Pag-ibig Fund
considerably more employer-employee contributions than just the P3,840.00.
On 23 February 1987, Special Prosecutor Luis B. Pangilinan, Jr. filed an
information against petitioner Larga for violation of Section 23 of Presidential
Decree No. 1752, known as "The Home Development Mutual Fund Law of
1980," committed as follows:
The undersigned Special Prosecutor accuses CELSO LARGA
AND DIOSCORO LARGA of the crime of violation of Section 23
of P.D. 1752 committed as follows:
That on or about the period from January 1984 up to the
present in the Municipality of Makati, Metro Manila, Philippines
and within the junction of this Honorable Court, the above
named a being then the owners and operators of BIMOR
DIESEL CALIBRATION SERVICE conspiring and confederating
together and both of them mutually helping and aiding one
another and with intent to defraud the HDMF, did then and
there willfully, unlawfully and feloniously fail and refuse to
remit to the HDMF the employer employee monthly
contributions amounting to TWENTY SIX THOUSAND EIGHT
HUNDRED EIGHTY (P26,880.00) PESOS, more or less,
computed as of April 1986 despite regular deductions made on
their monthly salaries.
CONTRARY TO LAW.
On 9 June 1987, the Regional Trial Court denied the Motion to Quash.
On 10 June 1987, petitioner filed a Reply to the Opposition to the Motion to
Quash, there arguing that Section 1 0 (b) and (c) of Executive Order No. 90 and
the Implementing Rules operated as an absolute repeal of Section 23 of
Presidential Decree No. 1752. Considering that said repeal was favorable to the
petitioner, he urged that it should be applied retroactively to cover his case.
The Regional Trial Court treated the Reply to the Opposition as a Motion for
Reconsideration of the Court's Order of 9 June 1987, which Motion the Court
denied on 27 July 1987.
In the instant Petition, petitioner urges once more that criminal liability for the
acts with which he was charged has been extinguished and that the Regional
Trial Court has lost its jurisdiction to try and sentence the petitioner.
Most briefly put, Presidential Decree No. 1752 created the HDMF which was
funded by savings which covered government and private sector employees
contributed for that purpose every month and by the counterpart amounts
which employers contributed, based on a graduated percentage of the basic
monthly pay of the employees. These percentage were: 1% in 1981; 2% in
1982; and 3% in 1983 and onwards.
Section 4 of P.D. No. 1752 prescribed mandatory coverage in the following
terms:
Section 4. Fund Coverage. Coverage of the Fund shall
be mandatory upon all employees covered by the Social
Security System and the Government Service Insurance
System, and their respective employers.
Such coverage may be extended to other working groups, with or without
employer contributions, as may be determined by the Board of Trustees.'
(Italics supplied)
Section 23 of the same statute established penal sanctions for violations of the
statute and of its Implementing Rules and Regulations in the following manner:
Section 23. Penal Provisions. Refusal or failure without
lawful cause or with fraudulent intent to comply with the
provisions of this Decree, as well as the implementing rules
and regulations adopted by the Board of Trustees, particularly
with respect to registration of employees, collection
44
45
Section 23 of P.D. No. 1752. It is commonplace Teaming that implied repeals are
not favored in law and are not casually to be assumed. The first effort of a court
must always be to reconcile or adjust the provisions of one statute with those of
another so as to give sensible effect to both provisions 3 Only where there is
clear inconsistency and irreconcilable conflict between the provisions of two (2)
statutes, may a court hold that the provisions later in point of time have
impliedly repealed the earlier ones. 4 That is not the case here in respect of
Sections 9 and 10 of E. O. No. 90 and Section 23 of P.D. No. 1752. It goes
without saying that from 1 January 1987 onwards, refusal of an employee or an
employer to become or remain a member of the Pag-Ibig Fund is no longer a
violation of Section 4 of P.D. No. 1752 and by the same token can no longer be
the subject of criminal prosecution under Section 23 of P.D. No. 1752. However,
failure to remit contributions accruing on or before 31 December 1986 in a
timely manner, remains punishable as a violation of P.D. No. 1752 and of the
Implementing Rules and Regulations adopted by the HDMF Board of
Trustees. 5 In the instant case, petitioner was prosecuted for failure to remit to
the HDMF employer-employee contributions which had accrued on or before
April 1986. Indeed, it may be useful to note here that failure on the part of an
employer to remit the voluntary contributions of its employees accruing after 1
January 1987, in accordance with the Implementing Rules and Regulations of
Pag-Ibig Fund, also constitutes a violation punishable under Section 23 of P.D.
No. 1752. 6
WHEREFORE, the Court Resolved to DISMISS the Petition for Certiorari,
Prohibition and mandamus with Preliminary Injunction, for lack of merit. Costs
against petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17905
ARAULLO, C. J.:
On March 31, 1922, the decision of this court in the present case, affirming the
judgment of the Court of First Instance of Pangasinan, was published, but the
term of imprisonment by the said court upon the accused, for a violation of the
Election Law, defined and punished in section 2639 of the Administrative Code,
was increased to six months from which judgment the present appeal was
taken by the accused. The accused, after asking for a reconsideration of the
said decision and a rehearing and pending the resolution on the said petition,
filed a special motion on May 2d of this year, alleging that the crime
complained of had prescribed under the provision of section 71 of Act No. 3030,
enacted by the Legislature on March 9, 1922, and praying that they be
absolved from the complaint. Upon this motion the Attorney-General was
heard, having filed an answer and a supplemental answer, with the
corresponding arguments, opposing the same, as well as the accused who filed
their reply thereto and supplementary replies, both parties stating at length the
reasons and legal grounds for their respective contentions.
While it is a rule of general application that unless the defense of prescription is
pleaded in the trial court, it will be deemed to have been waived and cannot
later be raised, yet this rule is not of absolute application in criminal cases, for
if the prescription of the crime, as well as of the penalty whereby criminal
responsibility is extinguished, may, as is the case here with regard to the
former, be provided by statute after the termination of all the proceedings in
the trial court, as well as in the appellate court, and when the case has already
been submitted for discussion and is awaiting only the final judgment; and if
the prescription of the crime is but the extinguishment of the right of the State
to prosecute and punish the culprit, it is beyond question that, once the State
has lost or waived such right, the accused may, at any stage of the proceeding,
ask and move that the same be dismissed and that he be absolved from the
complaint. And not only that, the right to prosecute and punish the criminal
having been lost by the prescription of the crime expressly provided by the
statute, the State itself, the Government through the proper court, is in duty
bound to make a pronouncement to that effect. Therefore, as on March 9th of
this year, 1922, when Act No. 3030 went into effect, providing in its section 71
that offense resulting from the violations thereof shall prescribe one year after
their commission, the accused and the Attorney-General had already filed their
respective briefs in this court for the prosecution of the appeal taken from the
judgment of the court below, and the hearing of the case had already been
held, this court itself, without the necessity of any motion of the accused, or of
the Attorney-General, should have declared the crime in question to have
prescribed, in view of the provision of said section. Consequently, as this court
had not up to that time made such pronouncement, the accused are perfectly
justified in asking, as they have done in their motion of May 2d of this year,
that the offense having prescribed, they be absolved from the complaint. This
duty is imperative upon the courts of justice at any moment that the offense
appears to have prescribed under the provision of the law. With particular
reference to the present case, this conclusion is necessarily reached from the
letter as well as the spirit of the provisions of the Penal Code relative to
prescription, and from that of section 71 of the aforesaid Act No. 3030, for once
the offense or the penalty has prescribed, the State has no right to prosecute
46
the offender, or to punish him, and if he has already been punished, it has no
right to continue holding him subject to its action by the imposition of the
penalty. The plain precept contained in article 22 of the Penal Code, declaring
the retroactivity of penal laws in so far as they are favorable to persons
accused of a felony or misdemeanor, even if they may be serving sentence,
would be useless and nugatory if the courts of justice were not under obligation
to fulfill such duty, irrespective of whether or not the accused has applied for it,
just as would also all provisions relating to the prescription of the crime and the
penalty.
That such is the duty of the courts of justice and has been so recognized by this
court, is shown by the decision in the case of United States vs. Rama, R. G. No.
16247,1 for the crime of murder of four persons, committed in the month of
July, 1902, in the province of Cebu, in which one of the accused was sentenced
by the Court of First Instance of the said province to death and the other two to
life imprisonment. That case was brought to this court on appeal and, after the
filing of the respective briefs of the accused and the Attorney-General a hearing
was had. No allegations was made as to the prescription of the crime, yet this
court rendered a decision (not yet published in the Official Gazette) wherein,
after finding that two crimes of murder and two of homicide had been
committed and that seventeen years had already elapsed from the commission
of the latter to the institution of the judicial proceeding for the investigation and
punishment thereof, that is, more than the fifteen years fixed by lay for the
prescription of the crime of homicide, this court held that the said two crimes of
homicide had prescribed and the criminal responsibility of the three accused for
the said crimes extinguished, convicting the accused only of the two crimes of
murder. There is, therefore, on reason whatsoever why the allegation of
prescription made by the accused in their motion of the 2d of May of this year
cannot legally be considered; on the contrary, said motion must be decided
before the petition for the reconsideration of the decision published on the 31st
of March of last year, and for a rehearing of the case, or, to be more exact, the
said petition must be ignored, for the resolution of the aforesaid motion, if
favorable to the accused, would put an end to the proceeding right at its
present stage.
The first question to be decided, in connection with the contention of the
accused, is whether or not the prescription provided in section 71 of Act No.
3030 refers only to that Act and not to any other, for said section 71 says:
"Offenses resulting from violations of this Act shall prescribe one year after
their commission," and section 72 adds: "This Act shall take effect on its
approval."
It is enough to take into consideration the fact that Act No. 3030, is, as its title
indicates, amendatory to several sections and parts of sections of chapter 18 of
the Administrative Code, known as the Election Law, and of chapter 65 on
penalties for the violation of various administrative laws, among them, those of
the Election Law itself, included in said chapter 18 of the Administrative Code,
in order to understand that when the Legislature used the words "This Act," that
is, Act No. 3030, it referred, necessarily, to the Election Law included in various
sections and provisions of the aforesaid two chapters of the above-mentioned
Code, that is, the Election Law prior to Act No. 3030, under which the herein
accused were convicted. One needs but examine one by one all the sections of
said Act No. 3030, each of which declares the sense in which each of the
sections included in said chapters in amended, in order to convince himself that
said Act No. 3030 is similar to the law that preceded it, with the amendments
and some additions thereto. If the Legislature had passed and enacted a new
Election Law different from that contained in the above-mentioned chapters of
the Administrative Code, then it may be said that the phrase "This Act" can in
no way refer to the prior Election Law. Furthermore, if the offenses resulting
from the violations of the Election Law, the provisions of which are contained in
the aforesaid chapters of the Administrative Code, are the same offenses
provided for in Act No. 3030, though with some modifications in the details as
to some of them and with increase in the penalty, it cannot be denied that
when the Legislature used the words "This Act" in section 71 of Act No. 3030,
wherein it is provided that said offenses shall prescribe one year after their
commission, it necessarily referred to offenses resulting from the violations of
the former Election Law, as amended by said Act No. 3030. Besides, one of the
objects of this Act, as its title indicates, is to make more effective the provisions
and the purposes of the former Law contained in the Administrative Code; so
that Act No. 3030 rather than being an integral part of the former election law
is in conjunction with the latter the only Election Law in force; and any other
interpretation to the contrary of the phrase "This Act" cannot, in our opinion, be
accepted as good logic and in accordance with the principles of sound
reasoning.
It is true that in the next section, 72, it is provided that said Act No. 3030 shall
take effect on the date of its approval, which took place on March 9, 1922, but
the meaning of such an expression in connection with prescription is that
prescription can be invoked from that date, as was done by the accused, and
not that such provision may have a retroactive effect from that same date.
In this connection, there arises the second question as to whether or not the
provision of article 22 of the Penal Code above cited, declaring the retroactivity
of penal laws in so far as they are favorable to the defendant in a criminal
action for a felony or misdemeanor, is applicable to crimes penalized by special
laws, as does Act No. 3030, account being taken of the fact that, under article 7
of the Penal Code, offenses punishable under special laws are not subject to the
provisions of the said code.
Several decisions have been rendered by this court on this question in which
the distinguished members of this court hold opposite views. Among those may
be cited the case of United States vs. Cuna (12 Phil., 241), which is cited in a
later case, United States vs. Lao Lock Hing (14 Phil., 86), in which case this
court did not lay down a definite rule, but expressly reserved its opinion as to
whether or not article 22 of the Penal Code above referred to was applicable.
And it was so recognized by the Supreme Court of the United States, in an
appeal taken by writ of error by the accused, Ong Chang Wing (40 Phil., 1046),
said high court having limited itself to declaring that the accused, not having
been convicted by this court of an offense which was not punishable when
committed, and this court having held only that the right to impose the penalty
prescribed by the Penal Code of the Philippines had not been lost by the
subsequent statute, Act No. 1757, of the Philippine Commission, the accused
47
had not been denied due process of law, for as the Supreme Court of the United
States says in its decision, the duty of that court in that case was to determine
whether or not the judgment of this court amounted to a denial of due process
of law. Therefore, the decision rendered in those two cases cannot be invoked
in the one now before us.
In the case of United States vs. Lao Lock Hing (14 Phil., 86) and United States
vs. Calaguas (14 Phil., 739), cited also in support of the contrary opinion, as the
offenses therein involved were penalized by special laws, that is, by the Opium
Law, in the former, and by the Law of Police and Railroad Preservation, in the
latter, this court held, as it could not have done otherwise, that, under article 7
of the Penal Code, the provisions of the said Code were not applicable to those
offenses, inasmuch as said offenses were penalized by the said law which
prescribed a special and definite penalty for said offenses, but in those cases
said article 7 of the Penal Code was not interpreted in connection with the
application of article 22 of the same Code, providing for the retroactivity of
penal laws favorable to persons accused of a felony or misdemeanor.
Wherefore neither can the holding of this court in those cases have any
application to the one before us.
The case in which this court plainly and definitely decided the question under
consideration is that of United States vs. Parrone (24 Phil., 29). There the said
accused was charged with the crime of falsification of a cedula certificate,
definite and punished in section 55 of Act No. 1189 of the Philippine
Commission, but before the conviction of the accused, said Act was amended
by Act No. 2126 of the Philippine Legislature, which prescribed a lesser penalty
than the previous Act, and this court, after a careful perusal of all its decisions
dealing with that question, as above indicated, and a luminous and exhaustive
discussion on the interpretation of article 7 of the same Code in connection with
the retroactivity of the penalty, in so far as it is favorable to the accused, held,
upon the appeal taken by the said accused from the judgment of the court
below, that, under the provisions of article 22 of the Penal Code, the penalty
provided in Act No. 2126, which was later than Act No. 1189, was the proper
penalty to be imposed upon the accused in that case. In the course of that
decision, the court said:
Considering the provision of article 7 of the Penal Code, are the
provisions of article 22 of the same Code applicable to the penal laws
of the Philippine Islands other than the provisions of the Penal Code?
Article 22 is found in chapter 1 of title 3 of the Penal Code. Said
chapter is entitled "Penalties in General". Article 21 of said title and
chapter provides that "no felony or misdemeanor shall be punishable
by any penalty notprescribed by law prior to its commission." This
article is general in its provisions and in effect prohibits the
Government from punishing any person for any felony or misdemeanor
with any penalty which has not been prescribed by the law. It (art. 21),
therefore, can have no application to any of the provisions of the Penal
Code for the reason that for every felony or misdemeanor defined in
the Penal Code a penalty has been prescribed.
48
Code was alleged to have been violated by the imposition of the penalty of
prison correccional prescribed by the said Code, instead of prison menor,
prescribed by article 168 of the Election Law of August 30, 1870, upon the
accused therein, who were found guilty of a violation of the said Election Law,
which, was therefore, a special law in force prior to the said Penal Code of that
same year, the said Code having substitute the penalty of prision
correccional for that of prision menor, said court held that the appeal was not
well taken on the ground that the penalty of prision correccional had taken the
place of that of prision menor prescribed by the Election Law, and while the
duration of both penalties was the same, the correctional penalty was lighter
and more advantageous and favorable to the accused than prision menor, as it
was of a less grave nature; so that in those two cases, the supreme court of
Spain not only applied the provisions of the Penal Code to a special law, but
also gave retroactive effect to said provisions on account of being more
favorable to the therein accused, in accordance with the precept of article 22 of
the Penal Code. And here we have a most complete, clear and satisfactory
solution of whatever doubt might have arisen as to the interpretation of articles
7 and 22 of the Penal Code aforesaid.
It cannot be maintained that said article 22 of the Penal Code refers only to
penalties and is not applicable to appeals and proceedings, because the
prescription of the crime is intimately connected with that of the penalty, for
the length of time fixed by the law for the prescription depends upon the
gravity of the offense, as may be seen from Title VI of Book I of the Penal Code,
containing, as its heading indicates, "General Provisions Regarding Felonies and
Misdemeanors, the Persons Liable and the Penalties," without distinguishing
between the penalties and the extinguishing of the criminal responsibility dealt
with in said Title VI of said Book, which title comes next to Title V, treating of
the penalties incurred by those who evade service of sentence and those who,
while serving sentence, or after having been convicted by a final judgment not
yet served, commit some other crime. And aside from this intimate connection
between the prescription of the crime and that of the penalty, a statute
declaring the prescription of the crime has no other object and purpose than to
prevent or annul the prosecution of the offender and, in the last analysis, the
imposition of the penalty. Moreover, if the provisions relative to the prescription
of ownership and to the prescription of actions in civil matters are part of the
civil law, it cannot be denied that the provisions relative to the prescription of
crimes and of penalties are penal laws or form part thereof.
With regard to the question whether prescription must be considered as a
matter of procedural or formal law, or as a substantive law for the purpose of
the retroactivity of laws, we must state, with reference to the present case, that
the prescription provided in section 71 of Act No. 3030 is of the nature both of a
substantive law, in so far as it gives a person accused of any of the crimes
therein referred to, the right not to be prosecuted nor punished after the lapse
of the period of one year from the commission of said crimes, within which the
criminal action must be commenced, and of a procedural or adjective law in so
far as it fixes the time within which such action must necessarily be
commenced in order that the prosecution may be legal and the proper penalty
may lawfully be imposed. but however said provision may be considered, the
same must have a retroactive effect, as will be seen later on.
Therefore, as the instant case involves two special laws of the Philippine
Legislature, to wit, the Election Law contained in the above-mentioned chapters
of the Administrative Code, and Act No. 3030 which amended and modified the
former, it is evident that the provision declaring that offenses resulting from the
violations of said Act shall prescribe one year after their commission must have
retroactive effect, the same being favorable to the accused.
This, however, is objected to, although it is based on a general principle
frequently applied by many courts of the American Union, and in support of the
objection, several decisions of the said courts and a doctrine concerning the
matter found in Corpus Juris (volume 16, p. 222) and in Ruling Case Law are
cited, wherein it is established that laws fixing a period of prescription are not
applicable to crimes previously committed, unless by their terms they are
clearly retroactive or contain an express provisions to that effect.
We need not discuss each and every one of the said cases, it being sufficient
for our purpose to take up one of them, namely, that of Martin vs. State
([1859], 24 Tex., 62). There the Supreme Court of Texas held that as regards
crimes and misdemeanors, prescription had no retroactive effect and that the
Statute of Limitations enacted in 1854 could not have the effect of barring a
criminal action instituted within two years after the enactment of said Act,
provided that no period of prescription was fixed in a former law for the crime in
question, that is to say, that prescription cannot be invoked as a bar to a
criminal action for an offense like that of falsification involved in that case,
where said action was commenced under a statute authorizing it and in the old
law penalizing that crime no period was fixed for the prescription thereof. As
can be seen from a reading of the context of the decision in the aforesaid case
and the opinion of the writer thereof, said doctrine was announced without
taking into account the difference between the rule governing prescription in
criminal procedure and that applicable to civil actions, but on the contrary,
application was made only of the latter; hence the holding that a special
provisions as to prescription was necessary in the later statute to give it a
retroactive effect.
It should be noted, however, that the Chief Justice of that Supreme Court voted
vigorously against the said decision, stating in a well-reasoned dissenting
opinion the following:
I . . . am of opinion, that the limitation prescribe to prosecution applies
as well to prosecutions for offenses, committed before the passage of
the statute, as afterwards; and that, as the words of the statute plainly
import, the limitation commences to run from the time of the
"commission of the offense," whether that was before or after its
passage. The statute makes no distinction, as respects the limitation; it
makes no exception, from its provision, of offenses previously
committed; and I know of no principle, or rule of construction, which
will authorize the court to engraft an exception upon the statute. It is a
statute relating to the remedy, and being enacted for the benefit of
persons accused, is not an ex post facto law. The constitutional
inhibition of the enactment of retroactive laws, and laws impairing the
49
I do not think the reservation contained in the 81st section of the act
was intended to have, or should be construed to have, any effect upon
the limitation contained in the 75th section. That section was intended
only to prevent repeals by implication, and to enforce the observance
of the rule, which would have applied on general principles, without its
enactment, that where the act mitigates the punishment, the milder
penalty should be imposed. To hold it to apply to the limitation
prescribed for prosecution by the act, would be to except all offenses
committed before the passage of the act, from the operation of the
periods of limitation therein contained, and to hold that those offenses
would never become barred under its provisions. I cannot think that
such was the intention of the legislature.
There may be differences of opinion, respecting the policy of
prescribing so short periods of limitation, to prosecution for high
crimes. But that was a question for the law-making power; and I can
see no reason why the legislature should have intended the limitation
to apply to future, and not to pas, offense. The same reasons, and the
same policy, which dictated that the prosecution should be
commenced within a prescribed period, after the offense was
committed, would seem to apply equally to offenses committed before,
as to those committed after the passage of the statute.
50
the precept of article 22 of the Penal Code being clear and unmistakable,
according to which, penal laws have retroactive effect in so far as they are
favorable to persons accused of a felony or misdemeanor, the courts of justice
of these Islands cannot, and must not, make any application of the said rule
and doctrine, but must, on the contrary, abide by the said precept and comply
with it and carry it into effect, as hereinbefore stated, although no petition to
that effect is made by the accused that may be favored by those laws. And a
provision for the retroactivity of penal laws having, as it has, been made in the
said article in the terms already mentioned, it is evidently that when the
Philippine Legislature, the majority of whose members are also members of the
Philippine Bar, and, therefore, were aware of this legal provision, drew section
71 of the Election Law, Act No. 3030, to the effect that the offenses resulting
from the violations of the said law prescribe one year after their commission, it
ought to have known that it was not necessary for it to say that said provision
was to have retroactive effect in so far as it was favorable to the accused,
inasmuch as such provision had already expressly been made in article 22 of
the Penal Code, which was applicable not only to the prescription therein
provided when the same might be favorable to persons accused of those
crimes, but also to every penal law the retroactivity of which might be favorable
to persons accused of a felony or misdemeanor. And, this is the best and most
conclusive proof that in making the provision in section 71 aforecited, the
Legislature intended that same be given a retroactive effect, because the
members thereof could not ignore the law. From all of which it also necessarily
follows that, if that doctrine established by many courts of the metropolis is to
be applied in the instant case, it must be by saying that the same is useless or
that it was complied with in so far as the giving of a retroactive effect to the
said prescription was concerned, because that provision regarding retroactivity
has already been expressly made in article 22 of the Penal Code, and,
therefore, it is of no importance that in the former Election Law, that in, the
amended law, no provisions was made regarding prescription to give
immediate and full effect to the retroactivity provided in section 71 of Act No.
3030. The provisions of article 22 of the Penal Code, declaring the retroactivity
of laws favorable to persons accused of a felony or misdemeanor, is to be
deemed as if also expressly made in any new law at the time of its enactment,
when said law is a penal law, or one of a penal character, such as the
prescription contained in section 71 of Act No. 3030 here in question, which is
of that nature, as above stated, and there is no necessity of making in that law
any provisions to that same effect. And this is the reason why in the case
of Pardo de Tavera vs. Garcia Valdez, one of the first cases in the Philippine
Jurisprudence (1 Phil., 468) in which, the question, among others, was raised
whether the defendant, who was accused of grave insult defined and punished
in paragraph 1, article 458, of the Penal Code, should be punished under said
article, or under the provisions of Act No. 277, which is the Libel Law and went
into effect after the publication of the libelous article and the institution of the
criminal action, the court held, as stated in the syllabus, that:
"The general rule that penal laws shall be retroactive in so far as they favor the
accused has no application where the later law is expressly made inapplicable
to pending actions or existing cause of action," which clearly means that in
order for a penal statute favorable to the accused to have a retroactive effect, it
is not necessary that it be so expressly provided in the statues, or, to put it in
another way, that the provision declaring the retroactivity be repeated therein,
but that if the Legislature intends it not to have a retroactive effect, it should
expressly so state in the same statute. And the reason for it is obvious. For it
being the general rule, according to article 22 of the Penal Code, that penal
laws have retroactive effect in so far as they favor the accused, said general
rule applies to all laws that may be enacted in the future, and if the Legislature
intends to make an exception to the said rule, it should expressly say so.
Now, the eminent professor of International Law, Mr. Fiore, in his work on the
Irretroactivity and Interpretation of Statutes, which is termed by various
eminent jurists "a work full of juridical science," after recognizing as a rule
universally accepted by the courts and expressly sanctioned by most of modern
legislation that no penal law can have any retroactive effect, that is, that no
action or omission shall be held to be a crime, nor its author punished, except
by virtue of a law in force at the time the act was committed, advocates the
retroactivity of a penal law favorable to the offender, not as a right of the latter,
but founded on the very principles on which the right of the State to punish and
the combination of the penalty are based, and regards it not as an exception
based on political consideration, but as a rule founded on principles of strict
justice.
The same author, on studying the question that may arise in case the new land
should have changed the rules regarding prescription, that is to say, the
retroactivity of the law as to prescription, says:
The modifications as to prescription introduced by the new law may
affect the penal action or the penalty itself. With respect to the former,
it can be imagined that the new law has modified the rules as to the
applicability or inapplicability of the prescription to a given crime, or
the necessary conditions for its effectiveness, or, finally, the time and
period when it will have effect.
The authors who had studied this question have reached different
conclusions, because some have considered prescription as a law of
procedure or of form, while others have regarded it as a substantive
law, thereby admitting, therefore, the principle of vested right on the
part of the offender.
Those who have considered the statutes of limitations as of a formal or
remedial nature have maintained the opinion that the new law must
always be applied in all cases of prescription where the period was
already running at the time of the enactment of the new law on the
ground that all procedural laws must be deemed retroactive by nature.
Against this theory, however, it has been said that even admitting the
principle enunciated, the truth is that the culprit cannot be placed in a
worse situation, as would be the case if that theory is adopted, for
although the prescription begun under the former law, fixing a shorter
period, might have been completed, he would be subject to criminal
action under the new law prescribing a longer term, even if the
provisions of the latter, concerning the substance of the penal action,
51
were not in force at the time of the commission of the crime. Again,
setting aside the theory of vested right on the part of the accused, as
we have already done (for we cannot admit any vested right on the
part of a private individual as against that which is considered by the
sovereign power as indispensable for maintaining the juridical order), it
can, however, be maintained that the application of the new law about
the prescription of the criminal action, when said law has extended the
time of the prescription, is tantamount to giving that penal law a
retroactive effect, as regards the very substance of punishment, thus
prejudicing the offender and admitting, as to him, a right to punish,
which, on account of the longer period fixed in the new law, cannot be
considered as based on any law in force and already promulgated at
the time of the commission of the crime.
On the other hand, those who have considered prescription as a
substantive law hold that the old law should always be applied, the
principal reason adduced by them in support of this opinion being that
the accused must at all events suffer the consequences of the situation
created by himself by committing the crime. Against this opinion, it has
been held, however, that the consideration of public policy, which
naturally prevails in matters of prescription, constitutes an obstacle to
the invariable application of the old law, for if the new law is less
severe as regards prescription, the result would be that the culprit
would be subject to the more severe law, which has been modified in
harmony with the more modern criteria sanctioned by the new law as
more in consonance with justice.
xxx
xxx
xxx
Consequently, if the sovereign power should enforce its right under the
former law it would be guilty of an inconsistency in view of its implied
admission that the old law was too severe and consequently unjust.
The necessity therefore of applying the less severe new law rests upon
the principle that the sovereign power cannot exercise its right to
punish except only within those limits of justice which that sovereign
power has established as being just and equitable at the time of
exercising that right.
On the other hand, when the latter statute of limitations of criminal
actions is more severe than the former, either as to the applicability of
the prescription itself, or as to the requirements and duration of the
action, the application of the said law to crime committed before its
enactment must be avoided not because the culprit has acquired any
right to prevent said application, but for the reasons above set out.
Indeed, on what ground can the culprit pretend to prevent the
sovereign power from doing what it has the right to do for the purpose
of maintaining the juridical order? There exists, therefore, no reason in
support of the theory of vested right on the part of the culprit, but what
must inevitably be admitted is that the sovereign power cannot,
without doing an injustice, apply the more severe legal provision in the
matter of prescription; and that that provision cannot justly be applied
unless it was previously promulgated, as even the right itself to punish
cannot come into existence except by virtue of a law duly promulgated
and in force at the time that it was violated and the crime committed.
The more severe law in matter of prescription extends the field of
criminal action and affects the substance of the same, because it
determines the basis and the sphere of the right to punish. Now, can
the sovereign power do all this without any law? Can it, without
committing an injustice, extend the effect of the new law to acts
committed before its enactment? As the sovereign power cannot
punish any act not expressly penalized by a former law, nor punish
with a more severe penalty any act performed before said penalty was
prescribed and the law fixing it promulgated, so it cannot extend the
criminal action (that is, its right to punish) by virtue of a later law by
applying to acts completed before its promulgation the less favorable
provisions therein made regarding prescription. In fact, in any case
where reduction of the time of prescription formerly fixed is to be made
under a new law, or where harder conditions are required by said law
for effectively taking advantage of the prescription, the sovereign
power is exercising the right to punish acts committed prior to the
promulgation of the new law, and it is evident that no such right can be
recognized in the sovereign power.
From all of the foregoing, we conclude that upon the very principles of
justice, under which the less severe provisions of the new law must
regulate all the elements of the criminal action, said less severe new
law must also control the matter of prescription, provided that there is
no final and irrevocable judgment, and this rule holds good even if the
modifications of the statute have reference to the prescription of the
penalty, because in substance the prescription of the penalty is
52
one year and has established less difficult conditions for the application of the
same as regards those offenses, which is evidently more favorable and lenient
to the violators of the said former law, and, as Fiore says in one of the
paragraph above quoted from his book, the reduction made by the new law
implies a recognition on the part of the sovereign power that the greater
severity of the former law, as regards the substance of the criminal action, is
unjust, and it would contradict itself if it would attempt to enforce its right
under the conditions of the former law which has already been regarded by the
conscientious public opinion as juridically burdensome, and, therefore, unjust,
and the sovereign power cannot exercise the right to punish except within the
limits regarded by it as just at the time of exercising it.
If, therefore, in reviewing the former Election Law contained in the two chapters
of the Administrative Code hereinbefore mentioned, for the purpose of
amending and reforming it in accordance with the dictates of reason, justice
and experience, the Legislature did amend and reform it by the enactment of
Act No. 3030, which supplied the deficiency found in the old law with regard to
the prescription of the crimes penalized therein, by providing in section 71 of
Act No. 3030 that those crimes, which year after their commission, because
their imprescriptibility was considered by the conscientious public opinion as
juridically burdensome, and, therefore, unjust, it is evident that the State, the
Government and the courts of justice representing it, cannot, without
committing a gross injustice, exercise the right to prosecute and punish the
violator of the old law under the conditions required by the law and outside of
the limits now regarded by the sovereign power, that is to say, the Legislature,
as just by the enactment of said Act No. 3030, which took effect on March 9,
1922. And such injustice would be more apparent still, if the violators of the old
Election Law, which was amended by Act No. 3030, would be prosecuted and
convicted five, ten, twenty, or more years after the said violations when the
proof of their innocence may not have been kept by them, while violators of Act
No. 3030, who may not have been prosecuted within the one year fixed by
section 71 aforesaid, would be free from being prosecuted and punished for the
crimes committed by them. And this injustice, which is so contrary to
conscientious public opinion and repugnant to humane sentiments, would
necessarily result, if the provisions of section 71 of Act No. 3030, which is now
in force, are not immediately applied right at this stage of the case in favor of
the herein accused, by taking up first the special motion of the accused filed on
May 2d of this year, before the petition for reconsideration and re-hearing
hereinbefore mentioned, or, better, by ignoring the said petition and disposing
of the case by deciding the motion of May 2d, wherein the accused invoked the
prescription provided in the said section, for the reason that this action was
commenced on December 20, 1920, one year and a half after the commission
of the offense resulting from the violation of the Election Law with which they
are charged.
In view of the foregoing, we find the said crime to have prescribed, and setting
aside the decision of this court published on the 31st of March of this year, the
present action is dismissed with all the costs de oficio, and the bond given by
the accused for their provisional release is cancelled, which release is hereby
declared final. So ordered.
53
MALCOLM, J., with whom concur JOHNSON and JOHNS, JJ., dissenting:
The high respect which I entertain for the authors of the majority opinions in
the cases of People vs. Moran and People vs. Parel,1 should not, of course, keep
me silent when I am strongly of the opinion that judgments grounded in a
mistaken view of the law are being handed down. My desire to state clearly and
bluntly my dissent from the majority opinions is only bounded by the paucity of
the English language in which to express myself. According to my view, as will
hereafter be demonstrated, the majority decisions discuss questions which
need no discussion, do violence to plain provisions of the law, take stands supported by no authority which can be discovered, and attain the result of
effectuating a general jait delivery of crim-inals who had thwarted the people's
will during the elec-tions in 1919.
An introductory and pertinent inquiry can well be, what is the effect of the
majority decisions?
Juan Moran, Fructuoso Cansino, and Hilario Oda, election inspectors of the first
precinct of the municipality of Bina-lonan, Pangasinan, were found guilty by
Judge of First Instance Nepomuceno and again on appeal by the Supreme
Court, with the sole modification that the penalty was increased, of having
falsified election returns.-But Moran, Cansino, and Oda will now never enter the
portals of prison.
Raymundo, Verceles, election inspector of the fifth pre-cinct of the municipality
of Binalonan, Pangasinan, was found guilty by Judge of First Instance
Nepomuceno, and again on appeal by the Supreme Court, with the sole modification that the penalty was increased, of having falsified election returns, and is
now serving his sentence.-Verceles will now be liberated.
Norberto Parel and Daniel Paz, election inspectors of the second precinct of the
municipality of Bantay, Ilocos Sur, were found guilty by Judge of First Instance
Jaranilla, of having unlawfully written the ballots of illiterate persons, with the
result that following the trial in an election contest, the protestant was declared
elected.-But though the two cases are on the calendar, the motion to dismiss
being granted, the question of the guilt or innocence of Parel and Paz will never
be determined by the appellate court.
Andres Imzon, chief of police of the municipality of San Pedro, Laguna, was
charged in the Court of First Instance of Laguna, with having unlawfully
intervened in the elec-tions of 1919, by soliciting votes in the election booths
and exchanging ballots previously prepared by him with those received by the
electors from the election board; Claudio de Leon and Alejandro Cailao, election
inspectors of the second precinct of the municipality of Bay, Laguna, were
charged with having seized and destroyed fifty official ballots already filled in
54
The point next in logical order, to which I would address attention, is whether
the question of the retroactivity of Act No. 3030 is properly and legally before
the court.
The status of the Moran case is of particular interest. Recall-Appeal perfected
and four errors assigned, but naturally not including the point of prescription
under Act No. 3030, for the very good reason that the Act was not yet on the
statute books. Act No. 3030 enacted and effective on March 9, 1922. Case
submitted, and judgment of Supreme Court rendered on March 31, 1922.
Motion of reconsideration filed by the attorney for the appellants, within the
regular fifteen-day period, based on two counts, but again not including the
point of prescription, although Act No. 3030 was then in force. Not until May 2,
1922, that is, not until two months after judgment was rendered, when a third
motion, which the Chief Justice is pleased to call a "special motion," was
presented, was the contention made that the alleged crime had prescribed in
accordance with section 71 of Act No. 3030.
The Chief Justice finds no difficulty in surmounting these obstacles, although
the constant practice of the court has been not to allow new and original
questions to be presented for the first time on a motion for rehearing; although
the court has consistently required that all arguments be ad-vanced in one
motion of reconsideration, and although the Rules of the Court are explicit and
mandatory, when they provide that "judgment shall not be entered until ten
days after * * * publication," that "five days after entry of judgment the clerk
shall remand the case to the lower court," and that "applications for a rehearing
shall be filed within fifteen days after the publication of the decision of the
court." (Note U. S. vs. Serapio [1912], 3 Phil., 584; Lucido and Lucido vs. Vita
[1911], 20 Phil., 449; Espidol vs. Espidol and Espidol [1913], 25 Phil., 4; Rules of
the Supreme Court of the Philippines, 33, 34, 35; 4 C. J., pp. 629, 642.)
Conceding, however, that as to all these preliminary mat-ters the majority are
right, and I am wrong, I am yet ready to meet them on their own ground and
am prepared to prove that the provisions of section 71 of Act No. 3030
approved March 9, 1922, providing that "Offenses resulting from violations of
this Act shall prescribe one year after their commission," should not, and
cannot be given retro-active effect, if the law is to be followed and justice is to
be done. The importance of the subject will serve as an apol-ogy for a lengthy
and serious consideration of the question above stated.
Act No. 3030 of the Philippine Legislature is entitled, "An Act to amend certain
sections and parts of sections of chapter eighteen, known as the Election Law,
and chapter sixty-five, on penalties for violations of certain administra-tive
laws, of Act Numbered Twenty-seven hundred and eleven, entitled 'An Act
amending the Administrative Code/ to make more effective the provisions and
purposes of said Election Law, and for other purposes." The first seventy
sections of Act No. 3030 amend specifically named sections of the
Administrative Code "to read as follows." Then follows section 71 above quoted.
The Act concludes with section 72 reading: "This Act shall take effect on its
approval." The Act was approved on March 9, 1922.
The first duty of the courts is to apply the law. The last duty of the courts is to
interpret or construe the law. When, therefore, the Philippine Legislature said
that "Offenses resulting from violations of this Act shall pre-scribe one year
after their commission," it meant exactly what it said, and the only duty of the
court is to make effective the legislative language. "This Act" could mean only
Act No. 3030. Judicial interpretation or construction are consequently
impertinent and offensive in the face of the plain words used by the Legislature.
It has, however, been suggested, that "this Act" means "the Election Law as
amended." Even if this proposition be conceded, yet it remains true that the
amendatory Act will not be given a retrospective construction; the new
provisions are to be understood as enacted at the time the amended act takes
effect. (36 Cyc., 1223.) In this instance section 72 says that "This Act (No. 3030)
shall take effect on its approval"-on March 9, 1922.
It should be observed in relation to what has just been said with regard to the
appropriateness of merely applying the law, that there is nothing in section 71,
or in any other section of Act No. 3030, which would authorize a retrospec-tive
construction. Not one word which even squints at a retroactive effect can be
found in Act No. 3030. If the Philippine Legislature had intended that Act No.
3030 should apply to pending cases, it could easily have used language to this
effect; as for example, "Offenses heretofore committed," etc. Not having done
so, the courts cannot write such words into the law without usurping legislative
prerogatives.
It is a cardinal rule of statutory construction, so elemen-tary that I hesitate to
repeat it, that if the courts find it impossible to apply the law, then their duty is
to ascertain and give effect to the intention of the law-making body. Here, the
intention of the Philippine Legislature is self--evident. The various sections of
Act No. 3030 were care-fully drafted to close up the loopholes in the old
Election Law and to provide more severe penalties. The purpose of the
Legislature, as announced in the title of the law, is, in part, "to make more
effective the provisions and purposes of said Election Law." It would be a,
strange interpretation indeed, which would attain the result, in a law of this
character, of liberating criminals convicted at the time the law went into effect,
when the Legislature intended to provide more effectively for cleaner elections.
With strong reluctance, therefore, am I led away from the firm ground on which
my feet are planted, when we simply apply the law and effectuate legislative
intention, to follow strange and treacherous.bypaths. That I do so is because of
the energy with which these arguments have been pressed by counsel and out
of respect to the point of -view of colleagues in the Court.
The majority say that "Both consistency and sound legal principle^, * * *
demand that we, in this case, seek our precedents in Latin rather than in
American jurispru-dence." I had thought that the Philippines was under
American sovereignty and that the Election Law was an American importation.
But apparently I have been mis-taken. As, however, the majority with
"consistency" cite Wharton, an American authority, possibly, also, I may be
55
pardoned if I use the same authority and give some promi-nence to the
American precedents.
Mr. Wharton, in his treatise on Criminal Pleading and Practice (9th ed., 1889)
announces the following doctrine: "As a rule, statutes of limitation apply to
offences perpe-trated before the passage of the-statute as well as to subsequent offences."' (P. 219.) The. cases cited in support of the text are found on
examination to be early Federal cases relating to the 32d section of the Act of
Congress of April 30, 1790. The contention there denied was "that an act of
limitations to criminal prosecutions can only be used as a bar in cases declared
by law to be criminal at the time the act of limitations was passed, unless there
be express words extending it to crimes to be created in fu-ture." (See Adams
vs. Woods [1805], 2 Cranch, 336.)
Corpus Juris (published in 1918), which the majority decisions avoid
mentioning, is authority for a different statement of the rule, under the subject
"Limitation of Prosecutions in Criminal Cases," namely: "Such statutes are to be
given a reasonably strict construction in favor of accused and against the
prosecution. By the weight of authority, however, they do not apply to crimes
previously committed, unless clearly retrospective in their terms." (16 C. J.,
222.) The cases in support of the last sentence are the following: People vs.
Lord ([1877], 12 Hun. [N. Y.L 282), and Martinis. State ([1859], 24 Tex., 62)..
Contra, Commonwealth vs. Hutchinson ([1850], 2 Pars. Eq. Gas. [Pa.], 453, 1
Phila., 77).
The New York case cited is not available in our library. In a standard treatise,
Wood on Limitations, special refer-ence is, however, made to it. It is said: "In
New York such statutes are held not to apply to crimes committed before the
statute was changed, unless expressly included therein, adopting the rule in
that respect applicable In civil cases." (Wood on Limitations, 3d ed., p. 45.)
In the second case cited in the note to Corpus Juris, Martin vs. State, the
Supreme Court of Texas held: "Stat-utes of limitations for the prosecution of
crimes and mis-demeanors, do not have a retrospective operation. * * * The
statute of limitations passed in 1854 could not operate as a bar to a
prosecution commenced within two years from the time that statute went into
operation, there being no previous limitation to the prosecution of the offense
in question." The Chief Justice rendered a dissenting opinion, which is now
made one of the props of the opinion of our Chief Justice.
The same result was obtained in decisions coming from Massachusetts.
(Commonwealth vs. Boston and Worcester Railroad Corporation [1853], XI
Gush. [Mass.], 512; and Commonwealth vs. Homer [1891], 153 Mass., 343.) In
the first Massachusetts case it was held that an indictment against a railroad
company under St. 1840, c. 80, for negli-gently causing the death of a
passenger, is not within Rev. Sts. c 120, sec. 21, limiting actions and suits for
any penalty, or forfeiture, to one year after the offense is committed, for the
reason that St. 1853, c. 414, sec. 3, does not apply Jo indictments pending at
the time of its passage. In the second Massachusetts case, it was held that the
Statute of 389, c. 100, providing that in a criminal prosecution on the Pub. Sts.
56
It has been held that the rule for the construction of statutes of limita-tions,
with respect to their operation as being retroactive or not, requires such
statutes (whether new, reenacted or amended), to be given a wholly
prospective effect, that is, to commence running with respect to a particular
cause of action from the time when the cause is subjected to the operation of
the act, so that the party may have the full period prescribed thereby, unless it
clearly appears that the legislature intended the act to operate on existing
causes, so as to commence running from the time any such cause accrued.
(Thomas vs. Higgs & Calderwood [1910], 68 W. Va., 152, Ann. Cas.,.1912A,
1039; Hathaway vs. Mer-chants' Loan and Trust Co. [1905], 218 III., 580; 4 Ann.
oGas., 164; Moore vs. State [1881], 43 N. J. L., 203; Herrick vs. Boquillas Land &
Cattle Co. [1906], 200 U. S., 96, 102; U. S. Fidelity etc. Co. vs. Struthers Wells
Co., [1907], 209 U. S., 806.)
Ruling Case Law summarizes the principles governing the construction of
limitation laws as follows:
"There are certain principles which have been adhered to with great strictness
by the courts in relation to the construction of statutes, as to whether they are
or are not retroactive in their effect. The presumption is very strong that a
statute was not meant to act retrospectively, and it ought never to receive such
a construction if it is suscep-tible of any other. It ought not to receive such a
construc-tion unless the words used are so clear, strong, and imperative that no
other meaning can be annexed to them or unless the intention^ of the
legislature cannot be otherwise satisfied. (Dash vs. Van Kleeck, 7 Johns., 477,
499; Jack-son ex dem Hicks vs. Van Zandt, 12 Johns, 169; United States vs.
Heth, 3 Cranch, 399, 414; Southwestern Coal & Improv. Co. vs. McBride, 185 U.
S., 499, 503; United States vs. American Sugar Ref. Co., 202 U. S., 563, 577.)
"The language of the amended act is prospective, as it provides 'that hereafter
any person or persons entering into a formal contract with the United States/
etc. That language standing alone would leave little doubt as to the intention of
Congress in the matter of the taking effect of the amendment.
"One rule for the construction of laws is that statutes of limitation are presumed
to be prospective and not retro-spective in their operation, in the absence of a
clear legis-lative intent to the contrary, and the presumption is against any
intent on the part of the legislature to make such statute retroactive. It has
been said that words of a statute ought not to have a retrospective operation
unless they are so clear, strong, and imperative that no other meaning can be
annexed to them, or unless the intention of the legislature cannot be otherwise
satisfied. *. * * Some courts take the view that since limitation laws apply only
to the remedy, they are not within the principle that statutes should be given a
prospective rather than a retrospective construction, and therefore that they
should be construed as retrospective unless they contain no language clearly
limiting their appli-cation to causes of action arising in the future. But it has
also been pointed out that even statutes as to procedure are not necessarily
retrospective in their operation and the courts are not compelled to construe as
retrospective a limitation law dealing with procedure only." (17 R. C. L., 682684.)
"It is urged, however, that as the amendment in this respect but reiterates the
language of the original act, the use of the word 'hereafter' in the
commencement of the amendment ought not to have the significance which
would >therwise attach to it, because it is simply in this particular reenacting
the law as it already stood.
"Viewing the whole section, we think Congress meant that only in future cases
should the provisions of the amend-ment apply, although some trifling portion
of those provi-sions might be regarded, technically, as in the nature of
procedure. It is therefore wiser to hold the entire section governed by the usual
rule and as applying only to the future."lvvph1n+
One of the cases cited in support of the general rule, and oft followed by other
courts, is United States Fidelity etc. Company vs. Struthers Wells Co., supra. In
the course of the opinion of the United States Supreme Court, it was said:
"There is considerable force in the suggestion that the word 'hereafter' is not to
receive the weight which in other circumstances it ought to have. The question
is, however, one as to the intention of Congress, and when we come to took at
the provisions of the statute, as amended, we are convinced that Congress did
not intend that the amendment should apply to cases where the bond had
already been executed, the work done, the respective rights of the parties
settled, and the cause of action already in existence. If Congress had intended
otherwise, we think it would have still further amended the original act by
providing in plain language that the amendment should apply to all cases, and
not be confined to the future. * * *
57
punishable by a law other than by the provisions of the Penal Code, the
provisions of said code do not apply." Following Viada in his commentaries on
the Penal Code (1 Viada, 84), it was also pointed out that among the special
laws are election laws. (U. S. vs. Se-rapio [1912], 23 Phil., 584, 592, 593.) The
majority de-cisions are strangely silent as to the decision last cited.
Paraphrasing article 7 of the Penal Code as construed by this court: As offenses
are made punishable by Act No. 3030, a special lawt the provisions of the Penal
Code do not apply. But it is said that article 7 should be interpreted with
reference to other articles of the Penal Code, and I concede that this is a fair
argument.
Article 22 of the Penal Code is found in Title III, which is headed, "Penalties."
Chapter I of Title III is entitled "Penalties in General." Only passing reference is
made to the epigraphy, in order to concede everything possible to the
argument of the petitioner in this case. Coming then to a consideration of the
substance of article 22 of the Penal Code, its effect can best be judged by
setting it side by side with article 3 of the Civil Code, since both articles have
been given indiscriminate application to criminal laws. These two provisions of
Philippine law read as follows:
"ART. 22. Penal laws shall have a retroactive effect in so far as they favor the
per-son guilty of a felony or misdemeanor, although at the time of the
publication of such laws a final sentence has been pronounced and the convict
is serving same."
"ART. 3. Laws shall not have a retroactive effect un-less therein otherwise provided,"lvvph1n+
Article 3 of the Civil Code, given express application to criminal laws in the case
of United States vs. Cuna ([1908], 12 Phil, 241), bears out the general doctrine
previously announced. Article 22, on the other hand, is of an opposite tenor,
and if given controlling effect, might lead to a contrary result. The first two
words of article 22 are "Penal laws." What is meant by the term "Penal laws?" Is
section 71 of Act No. 3030 a "penal law?"
I feel that I can, with all propriety, turn to the definition of "penal law" given by
the American authorities, not only because there are numerous judicial
definitions of the phrase available, but because the Election Law, establishing
the Australian Ballot System, is primarily an American innovation, which was
unknown in Spain when the Penal Code of 1870 was promulgated.
"PenaUaws," all of the English and American decisions state, strictly and
properly are those imposing punishment an offense committed against the
state, and which, by the English and American constitutions, the executive of
the state has the power to pardon. In other words, a penal law denotes
punishment imposed and enforced by the state for a crime or offense against
its law. It would be palpably incongruous to call a statute penal which did not
contain a definite and certain provision for punishment. On the other hand, a
statute which gives a remedy for an injury belongs to the class of remedial
statutes, and not to that of penal statutes. (Huntington vs. Attrill [1892], 146 U.
S., 657; Whitman vs. National Bank of Oxford [1900], 176 U. S., 559; Shick vs.
United States [1904], 195 U. S., 65; The Antelope [1825], 10 Wheat., 66, 123;
United States vs. Reisinger [1888], 128 U. S., 398, 402; Davis vs. Mills [1903],
121 Fed., 703, 704; United States vs. Illinois Cent. R. Co. [1907], 156 Fed., 182,
185; United States vs. Four Hundred and Twenty Dollars [1908], 162 Fed., 803,
805; Ross vs. New England Mortg. Security Co. [1893], 101 Ala., 362; Nebraska
Nat. Bank vs. Walsh [1900], 68 Ark., 433; Levy vs. Superior Court [1895], 105
CaL, 600; Plumb vs. Griffin [1901], 74 Conn., 132; Mitchell vs. Hotchkiss [1880],
48 Conn., 9, 19; Southern Ry. Co. vs. Melton [1909], 133 Ga., 277; Woolverton
vs. Taylor [1890], 132 111,, 197; Diversey vs. Smith [1882], 103 III., 378, 390;
American Credit-Indemnity Co. vs. Ellis [1901], 156 Ind., 212; State vs.
Hardman [1896], 16 Ind. App., 357; Lagler vs. Bye [1896], 42 Ind. App., 592;
Sackett vs. Sackett [1829], 25 Mass., 309, 320; Cary vs. Schmeltz [1909], 141
Mo. App., 570; Casey vs. St. Louis Transit Co. [1905], 116 Mo. App., 235; State
ex rel Rodes vs. Warner [1906], 197 Mo., 650; Manhattan Trust Co. vs. Davis
[1899], 23 Mont., 273; Globe Pub. Co. vs. State Bank [1894], 41 Neb., 175;
Boice vs. Gibbons [1826], 8 N. J. Law, 324, 330; Hutchinson vs. Young [1903],
80 N. Y. S., 259; People vs. Wells [1900], 65 N. Y. S., 319; Smith vs. Colson
[1912], 31 Okl., 703; Kiltoh vs. Providence Tool Co. [1905], 22 R. I., 605; Aylsworth vs. Curtis [1896], 19 R. I., 517; Whitlow vs. Nash-ville, C. & St. L. R. Co.
[1904], 114 Tenn., 344; Drew vs. Russel [1875], 47 Vt, 250, 253; Norfolk & W. R.
Co. vs. Hall [1897], 44 W. Va, 36.)
Escriche, Diccionario Razonado de Legislacidn y Juris-prudencia (vol. Ill, p. 898),
defines "ley penal," the Spanish equivalent of "penal law," as follows: "Ley
penal es la que tiene por objeto algun delito y la pena con que ha de castigarse." Diccionario Encidopedico de la Lengua Caste-liana defines "penal"
thus: "Perteneciente o relativo a la pena o que la incluye;"-and "pena" thus:
"Castigo im-puesto por superior legitimo al que ha cometido un delito o falta."
The first instance in which our Supreme Court gave con-sideration to article 22
of the Penal Code, was in the case Jof Pardo de Tavera vs. Garcia Valdez
([1902], 1 Phil, 468), The Chief Justice, in his decision, relies on the syllabus
which, of course, is the statement of the reporter and not of the court. I prefer
to go to the opinion, wherein it was said:
"Section 13 of the same act provides as follows: 'All laws and parts of laws now
in force, so far as the same may be in conflict herewith, are hereby repealed:
Provided, That nothing herein contained shall operate as a repeal of exist-ing
laws in so far as they are applicable to pending actions or existing causes of
action, but as to such causes of action or pending actions existing laws shall
remain in full force and effect/ This act went into effect October 24, 1901,
subsequent to the publication of the article in question, and during the
pendency of the prosecution. By article 22 of the Penal Code 'Penal laws shall
have a retroactive effect in so far as they favor the person guilty of a crime or
mis-demeanor/ etc. The court below in fixing the punishment proceeded upon
the theory that by the operation of this general rule the penalty prescribed in
the Penal Code for the offense in question was necessarily modified and could
not be inflicted in its full extension. In so doing we think the court overlooked or
58
improperly construed the proviso in the section of Act No. 277, above cited, by
virtue of which the previously existing law on the subject covered by the act is
left intact in all its parts as respects pending actions or existing causes of
action. The language is gpu-eral and embraces, we think, all actions, whether
civil, criminal, or of a mixed character. In this view of the case we have no
occasion to consider the question argued by coun-sel for the private prosecutor
as to whether the provisions of Act No. 277 respecting the penalty are more
favorable to the accused than those of the former law or otherwise. The
punishment must be determined exclusively by the provisions of the former
law."
The case of United States vs. Hocbo ([1908], 12 Phil, 304) oft mentioned by Mr.
Justice Ostrand, merely holds that (I now quote from the body of the decision),
"All amendments of the law (meaning the Penal Code) which are beneficial to
the defendant, shall be given a retroactive effect, in so far as they favor the
person charged with the crime or misdemeanor. * * * We find nothing in Act No.
1773 which is more favorable to the defendant than the provisions of the Penal
Code."
The case of United States vs. Parrone ([1913], 24 Phil, 29), gave special
attention to the relative effect of articles 7 and 22 of the Penal Code. It was said
that "Article 22 must necessarily relate (1) to penal laws existing prior to the
Penal Code, in which the penalty was less severe than those of the Penal Code;
or (2) to laws enacted subsequent to the Penal Code, in which the penalty was
more favorable to the accused. Rule 80, Ley Provisional para la aplica-cion de
las disposiciones del Codigo Penal. Under the pro-. visions of said article 22, if a
crime had been committed prior to the date of the Penal Code the punishment
for which was more favorable to the accused than the provisions of the Penal
Code, it is believed that the accused might invoke the provisions of said article
(22) even though he was not placed upon trial until after the Penal Code went
into effect. (U. S. vs. Cuna [1908], 12 Phil., 241.) So also if by an amendment to
the Penal Code or by a later special law the punishment for an act was made
less severe than by the provisions of the Penal Code, then the accused person
might invoke the provisions of said article." We gather from this language that
the phrase "penal laws" used in article 22 relates to laws enacted subsequent
to the Penal Code, in which the penalty is more favorable to the accused or the
punishment for the act is made less severe.
Statutes of limitation, it is well settled, relate to the remedy and not to the
right; relate to procedure and not to the crime. (Moore vs. State, supra;
Commonwealth vs. Duffy, supra; 17 R. C. L., 703, citing Mulvey vs. Boston
[1908], 197 Mass., 178; U. S. vs. Serapio, supra.) Viada, in his commentaries on
the Penal Code (vol. I, p. 570, 4th ed.), makes the following observations:
"Prescription of the crime only means the termination of the right or power to
prosecute or punish the offender, after the lapse of a definite period from the
commission of the offense, or if this is not known, from the day of its discovery
and the beginning of the judicial proceedings for investigation and
punishment." The supreme court of Spain, in a decision of January 22, 1872,
held that when the law speaks of the prescription of an offense, it cannot be
understood to mean other than that of the action to prosecute the same.
This construction is the more apparent, when it is re-membered that the Penal
Code, although it does contain some provisions concerning procedure, is,
generally speak-ing, substantive law. As such substantive law, it is but
reasonable to suppose that it would only reach special laws of a similar nature.
It must also be recalled that the crim-inal actions in the case before us and in
all other cases on appeal to tbe court, were instituted before the time Act No.
3030 took effect, and that these courts of first instance had jurisdiction of the
cases at that time.
What, therefore, is the condition of the much vaunted Latin law and
jurisprudence on the question under discus-sion? First, article 7 of the Penal
Code and our decisions make Act No. 3030 not subject to the provisions of the
Penal Code; second, article 22 is found in a title and a chapter of the Code
relating to "Penalties," and the article itself specifies "Penal laws;" third, section
71 of Act No. 3030 does not concern "penalties," and is not a "penal law," but is
a procedural law.
Not a single authority, Latin or American, supports the position of the
majority.lvvph1n+
So much for our opinion on the principal question. I note, however, that the
majority decision of Mr. Justice Ostrand argues the facts. I had been told that a
legal ques-tion was to be resolved. But somehow or other, although none of us
have read the record or the briefs in that partic-ular case, it may be a matter
which strengthens his position. And if this is true, and if the argument at least
serves as a smokescreen to obscure the real question, who can object?
The majority decisions also essay to sanctify and deify prescription laws. What
this has to do with the question in issue I do not know. I had thought that the
Supreme Court was a judicial body, but apparently I have miscon-ceived our
functions.
The majority further say that "a strong appeal has been made to our emotions
by describing in rather vivid colors, the disastrous consequences which will
result from the dis-missal of actions," etc., etc. I can find no such plea in any of
the briefs. But the statement brings to mind a point on which I would gladly
comment. What then are the consequences which would result from holding
that section 71 of Act No. 3030 has retrospective effect?
One consequence I have already noted. At least thirty-two cases dismissed, and
the crimes of ninety-one accused condoned. "A clear legislative intent, by a
repeal of the act imposing it, or some other expressed purpose, is re-quired to
take away a penalty or condone a crime by a retroactive law. This is especially
to be guarded against in legislation designed to favor individuals at the
expense of the public." (State vs. Startup [1877], 39 N. J. Law, 423.)
In the next place, such a holding would mean that we would make of Act No.
3030 an ex post facto law, something which is not claimed for it by petitioner,
and a pitfall which the courts invariably avoid. And, lastly, I would recall another
59
well-known principle of statutory construction: "If the language is clear, and the
intent manifest, there is, of course, no room for presumptions. But if, on the
other hand, the language is not clear, and it is obvious that by a particular
construction in a doubtful case great public in-terests would be endangered or
sacrificed, the court ought not to presume that such construction was intended
by the makers of the law. A statute will not be so construed as to work public
mischief, unless required by clear, unequivocal words, especially if the statute
be chiefly to subserve indi-vidual interests." (25 R. C. L., 1027.)
Having, then, in view the disastrous consequences of one holding, as
contrasted with the reasonable consequences of another, I can properly recall
that in every instance in which this court has considered the subject, it has
avoided the condonation of crime. For example, when the United States
Supreme Court in its decision in the Weems case ([1910], 217 U. S., 349), held
article 300 of the Penal Code void, it was incumbent upon the Supreme Court of
the Philippine Islands to apply and construe the 'decision of the higher tribunal.
In the case of United States vs. Pico ([1911], 18 Phil., 386), in which this court
discussed the subject, it was found that according to the official report of the
Director of Prisons there were serving sentences of analogous crimes four
hundred and eighty-five accused, and that should this court be bound thereby
to liberate them, "it * * * would result in a general jail delivery of all those
heretofore convicted of many of the gravest and most heinous offenses defined
and penalized by law; and would be substantially equivalent to a proclamation
of amnesty in favor of all those who have heretofore committed such crimes
and have not yet been brought to trial, or who may commit them hereafter until
such time as the Legislature niay be able to reform the Penal Code." The court
con-tinued: "Confronted as we are with the knowledge that consequences so
far-reaching and disastrous must result from a holding favorable to the
contention of counsel on this motion, it is manifestly our duty rigidly to restrict
the application of the doctrine laid down in the Weems case to cases wherein
the ratio decidendi in that case is clearly applicable and to decline to be bound
by inferences drawn from observations and comments contained in the opinion
in that case which appear to be based upon a mis-apprehension of facts, or
upon assumed facts which do not accord with the facts in the cases brought
before us." (Note also Ong Chang Wing vs. U. S. [1910], 218 U. S., 272.)
Before closing, I would like to disencumber myself of the miscellaneous
authorities which I have discussed, and would again prefer to get back to the
fundamentals of ascertaining and giving effect to legislative intent. On the one
hand, by applying the simple phraseology of section 71, it appears to me that
we effectuate legislative intention and avoid indescribable harm. On the other
hand, if we give to the language of the Legislature an unusual meaning, we
nullify legislative intention and turn away from prison persons who are guilty of
violations of the Election Law.
Not many years ago, the public was edified by executive pardons of criminals
who had violated the Election Law during the elections of 1913 and 1916. A
judicial veto of legislative intent, and judicial legislation now effects a blanket
pardon of persons who audaciously thwarted the people's will during the
elections of 1919.
60
radius, ulna left, which injuries have required and will require medical
attendance for a period of from six (6) to eight (8) months and have prevented
and will prevent the said offended party from engaging in his customary labor
during the same period of time. After trial the Municipal Court of Manila found
him guilty and sentenced him to three (3) months of arresto mayor. Defendant
appealed the case to the Court of First Instance of Manila.
On November 27, 1950, petitioner through counsel filed a motion to dismiss the
case on the ground that the Municipal Court of Manila had no jurisdiction over
the offense and, consequently, the court of first instance had no appellate
jurisdiction. The motion to dismiss was denied by Judge Potenciano Pecson
presiding over the court of first instance, but upon motion for reconsideration,
the same judge in his order of June 6, 1951 (Annex D), granted the motion for
reconsideration and dismiss the case for lack of jurisdiction. On a motion for
reconsideration filed by the Fiscal, Judge Pecson in his order dated August 29,
1951 (Annex E), revoked his order of June 6, 1951 (Annex D) and declared his
first order of December 14, 1950, denying the motion to dismiss as in force.
Counsel for defendant Ferrer asked for a reconsideration of this order and upon
denial of his motion by order of the respondent judge dated October 31, 1951
(Annex I), has filed the present petition for certiorari to revoked the order of
August 29, 1951 (Annex E), and to reinstate the order of June 6, 1951 (Annex
D).
After a careful study of this case, we are inclined to agree with the petitioner.
The jurisdiction of the court to try a criminal case is to be determined by the
law at the time of the institution of the action, (People vs. Pegarum, 58 Phil.,
715). At the time that the complaint in this case was filed on March 1, 1949, in
the Municipal Court of Manila, the law penalizing the act imputed to the
petitioner was the Revised Motor Vehicle Law (Act No. 3932), section 67 of
which provides that if as a result of negligence or reckless or unreasonably fast
driving any accident occurs resulting in death or serious bodily injury to any
person, the one responsible upon conviction shall be punished by imprisonment
for not less than fifteen (15) days nor more than six (6) years in the discretion
of the court.
According to a series of cases decided by this court, among them that
of Eustaquio vs. Liwag (86 Phil., 540) andPeople vs. Moreno (60 Phil., 712), an
act of negligence or reckless or unreasonably fast driving resulting in death or
serious physical injuries to any person, should be prosecuted under section 67
of the Revised Motor Vehicle Law and not under the Revised Penal Code.
clear that the Municipal Court of Manila had no jurisdiction over this case where
a maximum penalty of six (6) years may be imposed; and if it had no original
jurisdiction, the court of first instance presided over by Judge Pecson had
likewise no appellate jurisdiction.
It is true that section 67 of the Revised Motor Vehicle Law (Act No. 3932) was
amended by section 16 of Republic Act No. 587 which went into effect on
January 1, 1951, in the sense that acts of negligence or reckless or
unreasonably fast driving resulting in death or serious bodily injury upon any
person shall be prosecuted and punished under the provisions of the Revised
Penal Code. But this act may not be given retroactive effect so as to confer on
the municipal court jurisdiction which it did not have when it tried and decided
the case against petitioner. It may be true that the provisions of the penal code
are more favorable to the petitioner in this case as regards the penalty, but
when the very accused (herein petitioner) far from invoking the benefits of said
Republic Act No. 587, disregards it and instead, invokes the Revised Motor
Vehicle Law (Act No. 3932) which was in force at the time that the acts imputed
to him were committed, at least for that reason alone the question of
retroactivity cannot and will not be considered.
Respondents contend that under the Judiciary Act of 1948 as well as the
Charter of the City of Manila, the Municipal Court of Manila is given jurisdiction
to try criminal cases of assaults where the intent to kill is not evident from the
evidence, regardless of the penalty attached to the crime. But it is obvious that
acts of negligence in the operation of a motor vehicle which cause a collision
and result in physical injuries can hardly be regarded as assaults without the
intent to kill.
For the foregoing reasons, the petition for certiorari is hereby granted and the
order of respondent judge of June 6, 1951 (Annex D) dismissing the case for
lack of jurisdiction is hereby reinstated. No costs.
Paras C.J., Pablo, Bengzon, Padilla, Jugo, Bautista Angelo and Labrador,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
61
ANTONIO, J.:
Petition for certiorari to set aside the decision of the Court of Appeals, 1 dated
February 29, 1968, in Honesto G. Nicandro, et al. v. Development Bank of the
Philippines and People's Homesite and Housing Corporation (CA-G.R. No.
34518-R), affirming the decision of the trial court in Civil Case No. Q-6091.
The facts are summarized as follows:
On March 18, 1955, the Board of Governors of petitioner-appellant DBP
(hereinafter referred to as petitioner or simply DBP for brevity and
convenience), Under its Resolution No. 2004, appropriated the sum of
P1,204,000.00 to purchase land for a housing project for its employees. It was
contemplated that the Bank itself will build houses on the land to be acquired
and these will then be sold to employees who do not yet own homes and who
shall pay for them in monthly installments over a period of twenty (20) years. 2
Pursuant thereto, on October 20, 1955, the DBP bought 91,188.30 square
meters of land, consisting of 159 lots, in the proposed Diliman Estate
Subdivision, West Triangle, Quezon City, of the People's Homesite and Housing
Corporation (PHHC). Of the price of P802,155.56, the DBP paid the amount of
P400,000.00 as down payment. The area sold was then part of a bigger parcel
embraced under TCT No. 1356 and because the subdivision plan for the area
(including the 159 lots sold to the DBP) was still pending approval by the
Bureau of Lands, the sales agreement between the DBP and the PHHC was not
presented immediately for registration by the DBP. Lots 2 and 4, which form
part of said 159 lots, are the properties involved in the instant litigation. 3
In a memorandum to the Auditor General dated December 6, 1955, Mr. Isidro
Buag, the DBP Auditor, expressed his doubts as to whether the DBP could
acquire the property in question for the intended purpose of a housing project
in the light of the then Section 13 of Republic Act No. 85 (Exhibit 12A-DBP).
The Auditor General endorsed the matter to the Office of the President,
Malacaang, Manila, and on July 30, 1957 the Executive Secretary, in turn
referred the question (re legality of the acquisition of the lots in question by the
DBP) to the Secretary of Justice for opinion (Exhibit 13-DBP).
Meanwhile, on June 24, 1957, without the knowledge of the DBP, a portion of
the property covered by the master title, TCT No. 1356, including the 159 lots
sold to the DBP, were segregated therefrom and a separate certificate of title,
TCT No. 36533, was issued for the segregated portion in the name of PHHC.
However, the subdivision plan on which the segregation was based was not
annotated on the master title, TCT No. 1356, nor was the fact that the latter
was cancelled pro tanto by TCT No. 36533 as to the 159 lots (Exhibit 15-DBP).
Atty. Roman Cariaga, Chief of the Sales Division of the PHHC, testified that on or
before September 29, 1958, he was summoned by Benjamin Gray, Secretary to
the Board of Directors of the PHHC, and, while in the latter's room was
introduced to respondent-appellee, Honesto G. Nicandro. Gray then requested
Cariaga to prepare the order of payment for Lots 2 and 4 in favor of Honesto G.
Nicandro. Cariaga informed them (Gray and Nicandro) forthwith that both lots
were part of those already sold to the DBP.
On September 29, 1958, Mr. Sergio Ortiz Luis, a PHHC Director, and, at the
time, Acting Manager of the PHHC, wrote to the Chairman of the DBP that Lots
2 and 4, Block WT-21, had been inadvertently included among the lots sold to
the DBP and for said reason requested that the two lots be excluded from the
sale (Exhibit 1-DBP).
In his reply letter dated October 16, 1958, Chairman Gregorio S. Licaros of the
DBP refused to exclude Lots 2 and 4 as requested, insisting that they form part
of the 159 lots sold to the DBP as shown in the Sales Agreement dated October
20, 1955 and for which DBP has made a partial payment of P400,000.00
(Exhibit 2-DBP). On October 14, 1958, Acting Manager Sergio Ortiz Luis, without
waiting for the reply of DBP Chairman Licaros, approved the order of payment
for Lots 2 and 4, Block WT-21, in favor of appellees Honesto G. Nicandro and
Elisa F. Nicandro who paid the sum of P700.56 and P660.00 as down payment,
representing 10% of the price of the lots.
On October 28, 1958, Mr. Angel G. de la Paz, Chairman of the DBP Housing
Project Committee, also wrote to the Board of Directors of the PHHC, as follows:
In connection with your inquiry whether this bank will proceed
with the purchase of the employees housing project site in tile
West Triangle Subdivision, Quezon City, please be advised that
this Bank will definitely purchase the area allocated to it by
that Corporation.
62
63
Meanwhile, prior to the aforesaid decision of this Court, on March 14, 1960, in
reply to the query of the Board of Governors of the DBP whether the Bank can
sell the 159 lots on a cash basis to its employees, the Secretary of Justice
issued Opinion No. 40, holding that the deed of sale covering said lots is not
only ultra vires but is also illegal and void and, for that reason, the DBP cannot
sell the same to its employees even for cash.
On February 17, 1959, on the basis of the afore-mentioned Opinion No. 16, s. of
1959, of the Secretary of Justice, the Office of the President addressed a
memorandum to the Board of Governors of the DBP directing it to revoke
Resolution No. 2004 dated March 18, 1955. 4
On March 6, 1959, upon teaming that the required subdivision plan of the 159
lots sold to it were already submitted and duly recorded on TCT No. 36533, the
DBP forthwith requested the annotation of its sales agreement dated October
20, 1955 covering the lots in question on TCT No. 36533, and as a
consequence, the Register of Deeds transferred the annotation of said sales
agreement appearing on TCT No. 1356 to the new certificate of title, TCT No.
36533. 5
As the DBP's request for issuance of new certificates of title for Lots 2 and 4
was being opposed by the respondent spouse and unable to decide as to who
should be issued certificates of title for the two lots, the Register of Deeds of
Quezon City referred the matter on consulta to the Land Registration
Commission, where it was docketed as In Re Consulta No. 250. In a resolution
dated July 25, 1959, the Land Registration Commission held that respondent
spouse Honesto G. Nicandro and Elisa F. Nicandro were better entitled to the
issuance of certificates of title for Lots 2 and 4. After its motion for
reconsideration of the resolution was denied, the DBP promptly appealed the
decision to this Court.
On April 29, 1961, resolving DBP's appeal of In Re Consults No. 250, 6 this Court
held that the annotation made on January 15, 1959 of the sales agreement in
favor of the DBP on TCT No. 1356 constituted sufficient registration to bind third
parties, thereby reversing the resolution of the Land Registration Commission of
July 25, 1959, to the effect that the annotation on TCT No. 1356 of the sales
agreement between the PHHC and the vendee DBP did not constitute sufficient
registration to bind innocent third parties (referring to the Nicandros), in favor
of the appellees.
On June 17, 1961, Republic Act No. 3147 was enacted, amending certain
provisions of the DBP Charter (Republic Act No. 85), among which was Section
13 which, as Section 23 in the amended law, now reads as follows:
On November 10, 1961, respondent spouses then filed the case at bar against
the DBP and the PHHC, to rescind the sale of Lots 2 and 4 by PHHC in favor of
DBP, to cancel the transfer certificate of title that may have been issued
covering the two lots to DBP, and to order DBP to pay damages to the plaintiffs.
It was alleged that the acquisition of Lots 2 and 4 by the DBP is not only in
excess of its corporate powers but also a violation of the express prohibition of
Section 13 of its Charter, Republic Act No. 85, as amended. Against the PHHC,
respondent spouses alleged that in the alternative event that the case against
the DBP will not prosper, that PHHC be adjudged to pay to the plaintiff the
"value which the said properties may have on the date of decision ...".
It is important to note that the PHHC alleged as defenses the actuations of the
plaintiffs (Nicandro spouses) which have been characterized by bad faith. thus:
(a) that notwithstanding the information given by the defendant to the plaintiffs
that the question of legality of the acquisition by the DBP of lots has not been
64
65
pursuant to Section 13 of Republic Act No. 85. Even assuming that the DBP had
no authority initially to acquire the lots in question for the housing project of
the corporation for its employees, the important issue is whether or not the
Court of Appeals erred in not granting retroactive effect to Republic Act No.
3147 amending Republic Act No. 85. which authorizes the DBP to provide for
housing for the benefit of its officials and employees. The Court of Appeals, in
effect, held that the amendment "cannot validate the sale of Lots 2 and 4 in
favor of the DBP because the rights of the plaintiffs have already accrued
before its amendment" and section 13 as subsequently amended contains no
express provision of retroactive application. It necessarily follows that such
amended section cannot be given retroactive effect.
It may be stated, as a general rule, that curative statutes are forms of
"retrospective legislation which reach back on past events to correct errors or
irregularities and to render valid and effective attempted acts which would be
otherwise ineffective for the purpose the parties intended." They are intended
to enable persons to carry into effect that which they have designed and
intended, but which has failed of expected legal consequences by reason of
some statutory disability or irregularity in their action. They thus make valid
that which, before enactment of the statute, was invalid. 16 There cannot be any
doubt that one of the purposes of Congress when it enacted Republic Act No.
3147, by amending Section 13 of Republic Act No. 85, was to erase any doubts
regarding the legality of the acquisition by the DBP of the 159 lots from the
PHHC for the housing project which it intended to establish for its employees
who did not yet have houses of their own. This is obvious from the fact that
Republic Act No. 3147 was enacted on July 17, 1961, at a time when the legality
of the acquisition of the lots by the DBP for its housing project was under
question. It is, therefore, a curative statute to render valid the acquisition by
the DBP of the 159 lots from the PHHC. Since such curative statute may not be
given retroactive effect if vested rights are impaired thereby, the next question
then is whether or not the respondent spouses have any vested right on the
property which may be impaired by the statutory amendment. It is admitted in
the partial stipulation of facts that after the second sale of Lots 2 and 4 to
Honesto and Elisa Nicandro on November 7, 1958 by the PHHC, the question
arose as to who between the DBP, which purchased three (3) years earlier the
afore-mentioned lots on October 20, 1955, and the Nicandro spouses were
better entitled to the issuance of the certificates of title for Lots 2 and 4 on the
basis of entries made on the day book and annotations on the old and new
certificates of title covering the lots in question.
In the decision of this Court of April 29, 1961, in Register of Deeds of Quezon
City v. Nicandro, et al., 17 it held that: (a) the deed of sale of October 20, 1955
by the PHHC to the DBP of the 159 lots is "clearly, a registerable document";
and (b) that the annotation of the deed of sale in favor of the DBP on TCT No.
1356 on January 15, 1959 constituted sufficient registration to bind third
66
insofar as third persons are concerned. Registration is the means whereby the
property is made subject to the terms of the instrument. It is the operative act
that gives validity to the transfer or creates a lien upon the land. 19 In Register
of Deeds of Quezon City v. Nicandro, supra, this Court held that the registration
of the sales agreement between the PHHC and the DBP and the annotation
thereof on the old TCT No. 1365 constituted a prior valid registration of its
rights to the properties sold.
Under such circumstances, since under the Torrens system, registration is the
operative act that gives validity to the transfer, 20 and it was the sale to the
DBP that was registered and transfer certificate of title issued to the DBP,
private respondents could not have, therefore, acquired any complete, absolute
and unconditional right over the property. They had no vested rights on the
property at the time of the enactment of Republic Act No. 3147. A "vested right
is one which is absolute, complete, and unconditional, to the exercise of which
no obstacle exists, and which is immediate and perfect in itself and not
dependent upon a contingency," 21 To be vested in its accurate legal sense, a
right must be complete and consummated, and one of which the person to
whom it belongs cannot be divested without his consent. 22
During the pendency of this case, the People's Homesite and Housing
Corporation (PHHC) has been dissolved and its powers, functions, balance of
appropriations, records, assets, rights and choses in action, subject to certain
conditions, were transferred to the National Housing Authority. 23 Considering
that this case has been pending in the courts since 1961, and the constitutional
right of the parties to a speedy disposition of their case, the Court hereby
renders judgment herein, without awaiting the substitution of the PHHC by the
National Housing Authority.
WHEREFORE, in view hereof judgment is hereby rendered: (1) reversing the
judgment of the Court of Appeals in CA-G.R. No. 34518-R, dated February 29,
1968, and dismissing the complaint filed by the respondent spouses for
rescision of the sale"; and (2) ordering the Development Bank of the Philippines
to reimburse to the Nicandro spouses the payments which they made to the
PHHC in connection with said lots, with interest at the legal rate from November
6, 1958 until fully paid, which amount shall be deducted from the balance of
the purchase price of the property. No special pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
67
THIRD DIVISION
G.R. No. 138137
March 8, 2001
On July 7, 1994, during the pendency of the Iloilo case, respondent filed with
the Makati Regional Trial Court, Branch 66, a Complaint docketed as Civil Case
No. 94-2110 (hereafter referred to as the "Makati case"). The Complaint was for
the collection of a sum of money in the amount of P463,107.75 representing
the value of beer products, which respondent had delivered to petitioner.
In view of the pendency of the Iloilo case, petitioner moved to dismiss the
Makati case on the ground that it had split the cause of action and violated the
rule against the multiplicity of suits. The Motion was denied by the Makati RTC
through Judge Eriberto U. Rosario.
Upon petitioner's Motion, however, Judge Rosario inhibited himself. The case
was raffled again and thereafter assigned to Branch 142 of the Makati RTC,
presided by Judge Jose Parentala Jr.
On January 3, 1997, petitioner moved for the consolidation of the Makati case
with the Iloilo case. Granting the Motion, Judge Parentala ordered on February
13, 1997, the consolidation of the two cases. Respondent filed a Motion for
Reconsideration, which was denied in an Order dated May 19, 1997.
On August 18, 1997, respondent filed before the Court of Appeals a Petition for
Certiorari assailing Judge Parentala's February 13, 1997 and May 19, 1997
Orders.
Ruling of the Court of Appeals
Setting aside the trial court's assailed Orders which consolidated the Iloilo and
the Makati cases, the CA ruled in this wise:
"There is no common issue of law or fact between the two cases. The
issue in Civil Case No. 94-2110 is private respondent's indebtedness for
unpaid beer products; while in Civil Case No. 20341, it is whether or
not petitioner (therein defendant) breached its dealership contract with
private respondent.
"Private respondent in her complaint aforequoted attempts to project a
commonality between the two civil cases, but it cannot be denied that
her obligation to pay for the beer deliveries can exist regardless of any
"stop payment" order she made with regard to the checks. Thus, the
rationale for consolidation, which is to avoid the possibility of
conflicting decisions being rendered, (Active Wood products, Co. vs.
Court of Appeals, 181 SCRA 774, Benguet Corporation, Inc. vs. Court of
68
Appeals, 165 SCRA 27; Vallacar Transit, Inc. vs. Yap, 126 SCRA 503)
does not exist."3
Hence, this Petition.4
until July 22, 1997, within which to file the Petition for Certiorari. It did so,
however, only on August 21, 1997.
On the other hand, respondent insists that its Petition was filed on time,
because the reglementary period before the effectivity of the 1997 Rules was
ninety days. It theorizes that the sixty-day period under the 1997 Rules does
not apply.
The Issues
In her Memorandum,5 petitioner interposes the following issues for the
consideration of this Court:
"a. Were the Orders of February 13, 1997 and May 19, 1997 of the
Regional Trial Court, Branch 142 in Makati City (ordering consolidation
of Makati Civil Case No. 94-2110 with the Iloilo Civil Case No. 20341)
already final and executory when respondent filed its petition for
certiorari with the Hon. Court of Appeals such that said Court could no
longer acquire jurisdiction over the case and should have dismissed it
outright (as it originally did) x x x, instead of due giving course to the
petition?; and
"b. Independent of the first issue, did the Makati RTC, Branch 142,
correctly order the consolidation of the Makati case (which was filed
later) with the Iloilo Case (which was filed earlier) for the reason that
the obligation sought to be collected in the Makati case is the same
obligation that is also one of the subject matters of the Iloilo case, x x
x?"6
The Court's Ruling
The Petition is meritorious.
First Issue:
Propriety of Petition with the CA
Petitioner avers that the Makati RTC's February 13, 1997 and May 19, 1997
Orders consolidating the two cases could no longer be assailed. Allegedly,
respondent's Petition for Certiorari was filed with the CA beyond the
reglementary sixty-day period prescribed in the 1997 Revised Rules of Civil
Procedure, which took effect on July 1, 1997. Hence, the CA should have
dismissed it outright.
The records show that respondent received on May 23, 1997, the Order denying
its Motion for Reconsideration. It had, according to petitioner, only sixty days or
As a general rule, laws have no retroactive effect. But there are certain
recognized exceptions, such as when they are remedial or procedural in nature.
This Court explained this exception in the following language:
"It is true that under the Civil Code of the Philippines, "(l)aws shall have
no retroactive effect, unless the contrary is provided. But there are
settled exceptions to this general rule, such as when the statute is
CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.
xxx
xxx
xxx
"On the other hand, remedial or procedural laws, i.e., those statutes
relating to remedies or modes of procedure, which do not create new
or take away vested rights, but only operate in furtherance of the
remedy or confirmation of such rights, ordinarily do not come within
the legal meaning of a retrospective law, nor within the general rule
against the retrospective operation of statutes."7 (emphasis supplied)
Thus, procedural laws may operate retroactively as to pending proceedings
even without express provision to that effect. 8 Accordingly, rules of procedure
can apply to cases pending at the time of their enactment. 9 In fact, statutes
regulating the procedure of the courts will be applied on actions undetermined
at the time of their effectivity. Procedural laws are retrospective in that sense
and to that extent.10
Clearly, the designation of a specific period of sixty days for the filing of an
original action for certiorari under Rule 65 is purely remedial or procedural in
nature. It does not alter or modify any substantive right of respondent,
particularly with respect to the filing of petitions for certiorari. Although the
period for filing the same may have been effectively shortened, respondent had
not been unduly prejudiced thereby considering that he was not at all deprived
of that right.
It is a well-established doctrine that rules of procedure may be modified at any
time to become effective at once, so long as the change does not affect vested
69
in the best position to know and to certify if an action for expropriation had
already been filed and pending with the courts."
Verily, the signatory in the Certification of the Petition before the CA should not
have been respondent's retained counsel, who would not know whether there
were other similar cases of the corporation.16 Otherwise, this requirement would
easily be circumvented by the signature of every counsel representing
corporate parties.
Upon the effectivity of the 1997 Revised Rules of Civil Procedure on July 1,
1997, respondent's lawyers still had 21 days or until July 22, 1997 to file a
petition for certiorari and to comply with the sixty-day reglementary period.
Had they been more prudent and circumspect in regard to the implications of
these procedural changes, respondent's right of action would not have been
foreclosed. After all, the 1997 amendments to the Rules of Court were wellpublicized prior to their date of effectivity. At the very least counsel should have
asked for as extension of time to file the petition.
Certification of Non-forum
Shopping Defective
Petitioner likewise assails the validity of the sworn certification against forumshopping, arguing that the same was signed by counsel and not by petitioner
as required by Supreme Court Circular No. 28-91. For his part, respondent
claims that even if it was its counsel who signed the certification, there was still
substantial compliance with Circular No. 28-91 because, a corporation acts
through its authorized officers or agents, and its counsel is an agent having
personal knowledge of other pending cases.
The requirement that the petitioner should sign the certificate of non-forum
shopping applies even to corporations, considering that the mandatory
directives of the Circular and the Rules of Court make no distinction between
natural and juridical persons. In this case, the Certification should have been
signed "by a duly authorized director or officer of the corporation," 13 who has
knowledge of the matter being certified. 14 In Robern Development Corporation
v. Quitain,15 in which the Certification was signed by Atty. Nemesio S. Caete
who was the acting regional legal counsel of the National Power Corporation in
Mindanao, the Court held that "he was not merely a retained lawyer, but an
NPC in-house counsel and officer, whose basic function was to prepare legal
pleadings and to represent NPC-Mindanao in legal cases. As regional legal
counsel for the Mindanao area, he was the officer who was in the best position
to verify the truthfulness and the correctness of the allegations in the
Complaint for expropriation in Davao City. As internal legal counsel, he was also
No Explanation for
Non-Filing by Personal Service
Citing Section 11 of Rule 13 of the 1997 Rules, petitioner also faults respondent
for the absence of a written explanation why the Petition with the Court of
Appeals was served on her counsel by registered mail. In reply, respondent
points out that such explanation was not necessary, because its counsel held
office in Makati City while petitioner and her counsel were in Iloilo City.
We agree with petitioner. Under Section 11, Rule 13 of the 1997 Rules, personal
service of petitions and other pleadings is the general rule, while a resort to
other modes of service and filing is the exception. Where recourse is made to
the exception, a written explanation why the service and the filing were not
done personally is indispensable, even when such explanation by its nature is
acceptable and manifest. Where no explanation is offered to justify the resort
to other modes, the discretionary power of the court to expunge the pleading
becomes mandatory.17 Thus, the CA should have considered the Petition as not
having been filed, in view of the failure of respondent to present a written
explanation of its failure to effect personal service.
In sum, the Petition for Certiorari filed with the CA by herein respondent,
questioning the orders of consolidation by the Makati RTC, should not have
been given due course. Not only was the Petition filed beyond the sixty-day
reglementary period; it likewise failed to observe the requirements of nonforum shopping and personal service or filing. All or any of these acts ought to
have been sufficient cause for its outright denial.
Second Issue:
Propriety of Consolidation
Apart from procedural problems, respondent's cause is also afflicted with
substantial defects. The CA ruled that there was no common issue in law or in
fact between the Makati case and the Iloilo case. The former involved
petitioner's indebtedness to respondent for unpaid beer products, while the
70
REGALADO, J.:
The instant petition seeks to reverse and set aside the decision 1 of respondent
Court of Appeals in CA-G.R. SP No. 20222, entitled "Corito Ocampo Tayag vs.
Hon. Norberto C. Ponce, Judge, Regional Trial Court of San Fernando, Pampanga
and Emilde Dayrit Cuyugan," promulgated on May 10, 1990, and its resolution
denying petitioner's motion for reconsideration. 2 Said decision, now before us
for review, dismissed petitioner's Petition for Certiorari and Prohibition with
Preliminary Injunction on the ground that the denial of the motion to dismiss
Civil Case No. 7938 of the court a quo is an interlocutory order and cannot be
the subject of the said special civil action, ordinary appeal in due time being
petitioner's remedy.
In said Civil Case No, 7938, herein private respondent, in her capacity as
mother and legal guardian of minor Chad D. Cuyugan, filed on April 9, 1987 a
complaint denominated "Claim for Inheritance" against herein petitioner as the
administratrix of the estate of the late Atty. Ricardo Ocampo. The operative
allegations in said complaint are as follows:
xxx xxx xxx
2. Plaintiff is the mother and legal guardian of her minor son,
Chad Cuyugan, by the father of the defendant, the late Atty.
Ricardo Ocampo; and the defendant is the known
administratrix of the real and personal properties left by her
deceased father, said Atty. Ocampo, who died intestate in
Angeles City on September 28, 1983;
3. Plaintiff has been estranged from her husband, Jose
Cuyugan, for several years now and during which time,
plaintiff and Atty. Ricardo Ocampo had illicit amorous
relationship with each other that, as a consequence thereof,
they begot a child who was christened Chad Cuyugan in
71
7. The estate of the late Atty. Ocampo has not as yet been
inventoried by the defendant and the inheritance of the
surviving heirs including that of said Chad has not likewise
been ascertained;
10. Several demands, verbal and written, have been made for
defendant to grant Chad's lawful inheritance, but despite said
demands, defendant failed and refused and still fails and
refused and still fails and refuses to satisfy the claim for
inheritance against the estate of the late Atty. Ocampo; 3
xxx xxx xxx
Plaintiff thereafter prays, among others, that judgment be rendered ordering
defendant to render an inventory and accounting of the real and personal
properties left by Atty. Ricardo Ocampo; to determine and deliver the share of
the minor child Chad in the estate of the deceased; and to give him
support pendente lite.
Petitioner, as defendant therein, filed her answer with counterclaim on June 3,
1987, disputing the material allegations in the complaint. She maintained by
way of affirmative defenses, inter alia, that the complaint states no cause of
action; that the action is premature; that the suit as barred by prescription; that
respondent Cuyugan has no legal and judicial personality to bring the suit; that
the lower court was no jurisdiction over the nature of the action; and that there
is improper joinder of causes of action. 4
72
No. 3. It is not the plaintiff that is now bringing the case before
the Court. It is (her) spurious child that she represents as
natural guardian that is instituting the action.
No. 4. Prescription has not set in if we consider that a spurious
child may file an action for recognition within four years from
his attainment of majority (New Civil Code. Art, 285, No. 2).
Whether the letters of the putative father, Atty. Ocampo, is
evidence, that should be inquired into in a hearing on the
merits.
With the denial of her motion for reconsideration of said order on November 19,
1987, 6 petitioner filed on December 10, 1987 a petition for certiorari and
prohibition before the Court of Appeals, docketed therein as CA-G.R. SP No.
13464, which was granted by the Sixth Division of respondent court on August
2, 1989 and enjoined respondent judge to resolve petitioner's motion praying
for the dismissal of the complaint based on the affirmative defenses within ten
(10) days from notice thereof. 7
In compliance with said decision of respondent court, the trial court acted on
and thereafter denied the motion to dismiss, which had been pleaded in the
affirmative defenses in Civil Case No. 7938, in an order dated October 24, 1989,
resolving the said motion in the following manner:
From all the foregoing, the Court finds that the complaint is
sufficient' in form and substance and, therefore, the motion to
dismiss could not be granted until after trial on the merits in
which it should be shown that the allegations of the complaint
are unfounded or a special defense to the action exists.
WHEREFORE, the Motion to Dismiss is hereby DENIED. 8
Petitioner's motion for reconsideration of said order was denied by the trial
court on January 30, 1990. 9 As a consequence, another petition
for certiorari and prohibition with preliminary injunction was filed by petitioner
on March 12, 1990 with respondent court, docketed as CA-G.R. SP No. 20222,
praying that the orders dated October 24, 1989 and January 30, 1990 of the
trial court be annulled and set aside for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.
73
On May 10, 1990, as earlier stated, respondent court promulgated its decision
dismissing the petition, and likewise denied petitioner's motion for
reconsideration in a resolution dated September 5, 1990, hence the present
petition for review on certiorari.
In elevating the case before us, petitioner relies on these grounds:
a. The Honorable Respondent Court of Appeals dismissed
Petitioner's Petition for Certiorari and Prohibition in UTTER
DISREGARD OF APPLICABLE DECISIONS OF THIS HONORABLE
COURT providing clear exceptions to the general rule that
interlocutory orders may not be elevated by way of the special
civil action of certiorari;
b. Respondent Court refused to resolve certain issues raised by
Petitioner before the Regional Trial Court and before
Respondent Court of Appeals involving QUESTIONS OF
SUBSTANCE not theretofore determined by this Honorable
Court, such as the interpretation and application of Art. 281 of
the Civil Code requiring judicial approval when the recognition
of an illegitimate minor child does not take place in a record of
birth or in a will: of Art. 175, Par. 2, in relation to Art. 172, Par.
2 of the Family Code, providing for the prescriptive period with
respect to the action to establish illegitimate filiation; and of
Art. 285 of the Civil Code, providing for the prescriptive period
with respect to the action for recognition of a natural child; and
c. Respondent Court has sanctioned a DEPARTURE by the
Regional Trial Court from the accepted and usual course of
judicial proceedings. 10
Petitioner contends that the action to claim for inheritance filed by herein
private respondent in behalf of the minor child, Chad Cuyugan, is premature
and the complaint states no cause of action, she submits that the recognition of
the minor child, either voluntarily or by judicial action, by the alleged putative
father must first be established before the former can invoke his right to
succeed and participate in the estate of the latter. Petitioner asseverates that
since there is no allegation of such recognition in the complaint denominated as
"Claim for Inheritance," then there exists no basis for private respondent's
aforesaid claim and, consequently, the complaint should be dismissed.
The instant case is similar to the case of Paulino vs. Paulino, et al., 11 wherein
the petitioner, as plaintiff, brought an action against the private respondents,
as defendants, to compel them to give her share of inheritance in the estate of
the late Marcos Paulino, claiming and alleging, inter alia, that she is the
illegitimate child of the deceased; that no proceedings for the settlement of the
deceased's estate had been commenced in court; and that the defendants had
refused and failed to deliver her share in the estate of the deceased. She
accordingly prayed that the defendants therein be ordered to deliver her
aforesaid share. The defendants moved for the dismissal of her complaint on
the ground that it states no cause of action and that, even if it does, the same
is barred by prescription.
The only difference between the aforecited case and the case at bar is that at
the time of the filing of the complaint therein, the petitioner in that case had
already reached the age of majority, whereas the claimant in the present case
is still a minor. In Paulino, we held that an illegitimate child, to be entitled to
support and successional rights from the putative or presumed parent, must
prove his filiation to the latter. We also said that it is necessary to allege in the
complaint that the putative father had acknowledged and recognized the
illegitimate child because such acknowledgment is essential to and is the basis
of the right to inherit. There being no allegation of such acknowledgment, the
action becomes one to compel recognition which cannot be brought after the
death of the putative father. The ratio decidendi in Paulino, therefore, is not the
absence of a cause of action for failure of the petitioner to allege the fact of
acknowledgment in the complaint, but the prescription of the action.
Applying the foregoing principles to the case at bar, although petitioner
contends that the complaint filed by herein private respondent merely alleges
that the minor Chad Cuyugan is an illegitimate child of the deceased and is
actually a claim for inheritance, from the allegations therein the same may be
considered as one to compel recognition. Further that the two causes of action,
one to compel recognition and the other to claim inheritance, may be joined in
one complaint is not new in our jurisprudence.
As early as 1922, we had occasion to rule thereon in Briz vs. Briz, et
al., 12 wherein we said:
The question whether a person in the position of the present
plaintiff can any event maintain a complex action to compel
recognition as a natural child and at the same time to obtain
ulterior relief in the character of heir, is one which, in the
opinion of this court must be answered in the affirmative,
provided always that the conditions justifying the joinder of the
two distinct causes of action are present in the particular case.
In, other words, there is no absolute necessity requiring that
the action to compel acknowledgment should have been
instituted and prosecuted to a successful conclusion prior to
74
Art. 285. The action for the recognition of natural children may
be brought only during the lifetime of the presumed parents,
except in the following cases:
(1) If the father or mother died during the minority of the child,
in which case the latter may file the action before the
expiration of four years from the attainment of his majority;
xxx xxx xxx
On the other hand, Article 175 of the Family Code reads:
Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as
legitimate children.
The action must be brought within the same period specified in
Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent.
Under the last-quoted provision of law, therefore, if the action is based on the
record of birth of the child, a final judgment, or an admission by the parent of
the child's filiation in a public document or in a private handwritten signed
instrument, then the action may be brought during the lifetime of the child.
However, if the action is based on the open and continuous possession by the
child of the status of an illegitimate child, or on other evidence allowed by the
Rules of Court and special laws, the view has been expressed that the action
must be brought during the lifetime of the alleged parent. 13
Petitioner submits that Article 175 of the Family Code applies in which case the
complaint should have been filed during the lifetime of the putative father,
failing which the same must be dismissed on the ground of prescription. Private
respondent, however, insists that Article 285 of the Civil Code is controlling
and, since the alleged parent died during the minority of the child, the action
for filiation may be filed within four years from the attainment of majority of the
minor child.
Article 256 of the Family Code states that "[t]his Code shall have retroactive
effect insofar as it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws." It becomes essential, therefore,
to determine whether the right of the minor child to file an action for
recognition is a vested right or not.
75
Under the circumstances obtaining in the case at bar, we hold that the right of
action of the minor child bas been vested by the filing of the complaint in court
under the regime of the Civil Code and prior to the effectivity of the Family
Code. 14 We herein adopt our ruling in the recent case of Republic of the
Philippines vs. Court of Appeals, et al. 15where we held that the fact of filing of
the petition already vested in the petitioner her right to file it and to have the
same proceed to final adjudication in accordance with the law in force at the
time, and such right can no longer be prejudiced or impaired by the enactment
of a new law.
Even assuming ex gratia argumenti that the provision of the Family Code in
question is procedural in nature, the rule that a statutory change in matters of
procedure may affect pending actions and proceedings, unless the language of
the act excludes them from its operation, is not so pervasive that it may be
used to validate or invalidate proceedings taken before it goes into effective,
since procedure must be governed by the law regulating it at the time the
question of procedure arises especially where vested rights may be prejudiced.
Accordingly, Article 175 of the Family Code finds no proper application to the
instant case since it will ineluctably affect adversely a right of private
respondent and, consequentially, of the mind child she represents, both of
which have been vested with the filing of the complaint in court. The trial court
is therefore, correct in applying the provisions of Article 285 of the Civil Code
and in holding that private respondent's cause of action has not yet prescribed.
Finally, we conform with the holding of the Court of Appeals that the questioned
order of the court below denying the motion to dismiss is interlocutory and
cannot be the subject of a petition for certiorari. The exceptions to this rule
invoked by petitioner and allegedly obtaining in the case at bar, are obviously
not present and may not be relied upon.
DECISION
PANGANIBAN, J.:
The ultimate question posed before this Court in these twin cases is: Who
should be declared the rightful governor of Sorsogon
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes
in three successive elections but who was twice declared by this Court to be
disqualified to hold such office due to his alien citizenship, and who now claims
to have re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that
the votes cast in favor of Frivaldo should be considered void; that the electorate
should be deemed to have intentionally thrown away their ballots; and
that legally, he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted
directly to the position of governor, but who according to prevailing
jurisprudence should take over the said post inasmuch as, by the ineligibility of
Frivaldo, a "permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections,
and upholds the superiority of substantial justice over pure legalisms.
G.R. No. 123755.
WHEREFORE, the petition at bar is DENIED and the assailed decision and
resolution of respondent Court of Appeals are hereby AFFIRMED in toto.
SO ORDERED.
EN BANC
This is a special civil action under Rules 65 and 58 of the Rules of Court for
certiorari and preliminary injunction to review and annul a Resolution of the
respondent Commission on Elections (Comelec), First Division, 1 promulgated
on December
19,19952 and
another
Resolution
of
the
Comelec en
bane promulgated February 23, 19963 denying petitioner's motion for
reconsideration.
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate
of Candidacy for the office of Governor of Sorsogon in the May 8,
1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate,
filed a petition4 with the Comelec docketed as SPA No. 95-028 praying that
76
Frivaldo "be disqualified from seeking or holding any public office or position by
reason of not yet being a citizen of the Philippines," and that his Certificate of
Candidacy be cancelled. On May 1, 1995, the Second Division of the Comelec
promulgated a Resolution5 granting the petition with the following disposition: 6
"WHEREFORE, this Division resolves to GRANT the petition and declares that
respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on
the ground that he is NOT a citizen of thePhilippines. Accordingly, respondent's
certificate of candidacy is cancelled."
The Motion for Reconsideration filed by Frivaldo remained unacted upon
until after the May 8, 1995 elections. So, his candidacy continued and he was
voted for during the elections held on said date. On May 11, 1995, the
Comelec en banc7 affirmed the aforementioned Resolution of the Second
Division.
The Provincial Board of Canvassers completed the canvass of the election
returns and a Certificate of Votes 8.dated May 27, 1995 was issued showing the
following votes obtained by the candidates for the position of Governor of
Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
RaulR.Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental)
petition9 praying for his proclamation as the duly-elected Governor of Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the
petition "only on June 29, 1995," the Comelec en bane directed "the Provincial
Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming
candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29,1995 x x x." Accordingly, at 8:30 in the evening of June
30,1995, Lee was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed
as SPC No. 95-317, praying for the annulment of the June 30,
1995 proclamation of Lee and for his own proclamation. He alleged that on June
30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of
the Philippines after "his petition for repatriation under P.D. 725 which he filed
with the Special Committee on Naturalization in September 1994 had been
granted." As such, when "the said order (dated June 21, 1995) (of the Comelec)
x x x was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in
the evening, there was no more legal impediment to the proclamation (of
Frivaldo) as governor x x x." In the alternative, he averred that pursuant to the
two cases of Labo vs. Comelec,12 the Vice-Governor not Lee should occupy said
position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein
assailed Resolution13 holding that Lee, "not having garnered the highest
number of votes," was not legally entitled to be proclaimed as duly-elected
governor; and that Frivaldo, "having garnered the highest number of votes, and
xxx having reacquired his Filipino citizenship by repatriation on June 30, 1995
under the provisions of Presidential Decree No. 725 xxx (is) qualified to hold the
office of governor of Sorsogon"; thus:
"PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES
to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R.
Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law,
he not having garnered the highest number of votes to warrant his
proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the
Provincial Board of Canvassers is directed to immediately reconvene and, on
the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the
duly elected Governor of Sorsogon having garnered the highest number of
votes, and he having reacquired his Filipino citizenship by repatriation on June
30,1995 under the provisions of Presidential Decree No. 725 and, thus, qualified
to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the
Clerk of the Commission is directed to notify His Excellency the President of the
Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province
of Sorsogon of this resolution immediately upon the due implementation
thereof."
On December 26,1995, Lee filed a motion for reconsideration which was denied
by the Comelec en banc in its Resolution14 promulgated on February 23, 1996.
On February 26, 1996, the present petition was filed. Acting on the prayer for a
temporary restraining order, this Court issued on February 27, 1996 a
Resolution which inter alia directed the parties "to maintain the status
quo prevailing prior to the filing of this petition."
77
the Comelec had no jurisdiction to issue said Resolutions because they were not
rendered "within the period allowed by law," i.e., "not later than fifteen days
before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act
on the petition for disqualification within the period of fifteen days prior to the
election as provided by law is a jurisdictional defect which renders the said
Resolutions null and void.
Third - The alleged repatriation of respondent was neither valid nor is the effect
thereof retroactive as to cure his ineligibility and qualify him to hold the Office
of Governor; and
Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity
of petitioner's proclamation as duly elected Governor of Sorsogon."
On March 19, 1995, the Court heard oral argument from the parties and
required them thereafter to file simultaneously their respective memoranda.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295
and 123755 since they are intimately related in their factual environment and
are identical in the ultimate question raised, viz., who should occupy the
position of governor of the province of Sorsogon.
on May
11,
The facts of this case are essentially the same as those in G.R. No.
123755. However, Frivaldo assails the above-mentioned resolutions on a
different ground: that under Section 78 of the Omnibus Election Code, which is
reproduced hereinunder:
"Section 78. Petition to deny due course or to cancel a certificate of
candidacy. A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the ground
that any material representation contained therein as required under Section
74 hereof is false. The petition may be filed at any time not later than twentyfive days from the time of the filing of the certificate of candidacy and shall be
decided, after notice and hearing, not later than fifteen days before the
election." (Italics supplied.)
78
The validity and effectivity of Frivaldo's repatriation is the lis mota, the
threshold legal issue in this case. All the other matters raised are secondary to
this.
when the Provincial Board of Canvassers met at 8:30 p.m. on the said date
since, clearly and unquestionably, he garnered the highest number of votes in
the elections and since at that time, he already reacquired his citizenship.
"Sec. 39. Qualifications. (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be elected;
a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or
dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least twentythree (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it
is therefore incumbent upon him to show that he has reacquired citizenship; in
fine, that he possesses the qualifications prescribed under the said statute (R.
A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of
Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R.
No. 10465422 and during the oral argument in this case that he tried to resume
his citizenship by direct act of Congress, but that the bill allowing him to do so
"failed to materialize, notwithstanding the endorsement of several members of
the House of Representatives" due, according to him, to the "maneuvers of his
political rivals." In the same case, his attempt at naturalization was rejected by
this Court because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly
elected governor by the electorate of Sorsogon, with a margin of 27,000 votes
in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same
opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus
twice disqualified from holding and discharging his popular mandate. Now, he
comes to us a third time, with a fresh vote from the people of Sorsogon and a
favorable decision from the Commission on Elections to boot. Moreover, he now
boasts of having successfully passed through the third and last mode of
reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the
Solicitor General himself, who was the prime opposing counsel in the previous
cases he lost, this time, as counsel for co-respondent Comelec, arguing the
validity of his cause (in addition to his able private counsel Sixto S. Brillantes,
Jr.). That he took his oath of allegiance under the provisions of said Decree
at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that henot
Leeshould have been proclaimed as the duly-elected governor of Sorsogon
First, Lee tells us that P.D. No. 725 had "been effectively repealed,"
asserting that "then President Corazon Aquino exercising legislative powers
under the Transitory Provisions of the 1987 Constitution, forbade the grant of
citizenship by Presidential Decree or Executive Issuances as the same poses a
serious and contentious issue of policy which the present government, in the
exercise of prudence and sound discretion, should best leave to the judgment
of the first Congress under the 1987 Constitution," adding that in her
memorandum dated March 27,1987 to the members of the Special Committee
on Naturalization constituted for purposes of Presidential Decree No. 725,
President Aquino directed them "to cease and desist from undertaking any and
all proceedings within your functional area of responsibility as defined under
Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended." 23
This memorandum dated March 27, 198724 cannot by any stretch of legal
hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D.
No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be
express or implied. It is obvious that no express repeal was made because then
President Aquino in her memorandum based on the copy furnished us by Lee
did not categorically and/or impliedly state that P.D. 725 was being repealed or
was being rendered without any legal effect. In fact, she did not even mention
it specifically by its number or text. On the other hand, it is a basic rule of
statutory construction that repeals by implication are not favored. An implied
repeal will not be allowed "unless it is convincingly and unambiguously
demonstrated that the two laws are clearly repugnant and patently inconsistent
that they cannot co-exist."26
The memorandum of then President Aquino cannot even be regarded as a
legislative enactment, for not every pronouncement of the Chief Executive
even under the Transitory Provisions of the 1987 Constitution can nor should be
regarded as an exercise of her law-making powers. At best, it could be treated
as an executive policy addressed to the Special Committee to halt the
acceptance and processing of applications for repatriation pending whatever
"judgment the first Congress under the 1987 Constitution" might make. In other
words, the former President did not repeal P.D. 725 but left it to the first
Congress once createdto deal with the matter. If she had intended to repeal
such law, she should have unequivocally said so instead of referring the matter
to Congress. The fact is she carefully couched her presidential issuance in
terms that clearly indicated the intention of "the present government, in the
exercise of prudence and sound discretion" to leave the matter of repeal to the
new Congress. Any other interpretation of the said Presidential Memorandum,
such as is now being proffered to the Court by Lee, would visit unmitigated
violence not only upon statutory construction but on common sense as well.
Second. Lee also argues that "serious congenital irregularities flawed the
repatriation proceedings," asserting that Frivaldo's application therefor was
"filed on June 29, 1995 x x x (and) was approved in just one day or on June 30,
79
1995 x x x," which "prevented a judicious review and evaluation of the merits
thereof." Frivaldo counters that he filed his application for repatriation with the
Office of the President in Malacanang Palace on August 17, 1994. This is
confirmed by the Solicitor General. However, the Special Committee was
reactivated only onJune 8, 1995, when presumably the said Committee started
processing his application. On June 29, 1995, he filled up and re-submitted the
FORM that the Committee required. Under these circumstances, it could not be
said that there was "indecent haste" in the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special
Committee on Naturalization was intended solely for the personal interest of
respondent,"27 the Solicitor General explained during the oral argument on
March 19, 1996 that such allegation is simply baseless as there were many
others who applied and were considered for repatriation, a list of whom was
submitted by him to this Court, through a Manifestation 28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the
presumption of regularity in the performance of official duty and the
presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were speeded
up is by itself not a ground to conclude that such proceedings were necessarily
tainted. After all, the requirements of repatriation under P.D. No. 725 are not
difficult to comply with, nor are they tedious and cumbersome. In fact, P.D.
72529 itself requires very little of an applicant, and even the rules and
regulations to implement the said decree were left to the Special Committee to
promulgate. This is not unusual since, unlike in naturalization where an alien
covets a first-time entry into Philippine political life, in repatriation the applicant
is a former natural-born Filipino who is merely seeking to reacquire his previous
citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen
who openly and faithfully served his country and his province prior to his
naturalization in the United States a naturalization he insists was made
necessary only to escape the iron clutches of a dictatorship he abhorred and
could not in conscience embrace and who, after the fall of the dictator and the
re-establishment of democratic space, wasted no time in returning to his
country of birth to offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor
General, were granted repatriation argues convincingly and conclusively
against the existence of favoritism vehemently posited by Raul Lee. At any
rate, any contest on the legality of Frivaldo's repatriation should have been
pursued before the Committee itself, and, failing there, in the Office of the
President, pursuant to the doctrine of exhaustion of administrative remedies.
Third. Lee further contends that assuming the assailed repatriation to be
valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995
whereas the citizenship qualification prescribed by the Local Government Code
"must exist on the date of his election, if not when the certificate of candidacy
is filed," citing our decision in G.R. 104654 30 which held that "both the Local
Government Code and the Constitution require that only Philippine citizens can
run and be elected to Public office" Obviously, however, this was a
mere obiter as the only issue in said case was whether Frivaldo's naturalization
was valid or not and NOT the effective date thereof. Since the Court held his
naturalization to be invalid, then the issue ofwhen an aspirant for public office
should be a citizen was NOT resolved at all by the Court. Which question we
shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official
must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province x
x x where he intends to be elected;
* a resident therein for at least one (1) year immediately preceding
the day of the election;
* able to read and write Filipino or any other local language or
dialect."
* In addition, "candidates for the position of governor x x x must be
at least twenty-three (23) years of age on election day."
From the above, it will be noted that the law does not specify any
particular date or time when the candidate must possess citizenship, unlike
that for residence (which must consist of at least one year's residency
immediately preceding the day of election) and age (at least twenty three years
of age on election day).
Philippine citizenship is an indispensable requirement for holding an
elective public office,31 and the purpose of the citizenship qualification is none
other than to ensure that no alien, i.e., no person owing allegiance to another
nation, shall govern our people and our country or a unit of territory thereof.
Now, an official begins to govern or to discharge his functions only upon his
proclamation and on the day the law mandates his term of office to begin.
Since Frivaldo re-assumed his citizenship on June 30, 1995the very day 32 the
term of office of governor (and other elective officials) beganhe was therefore
already qualified to be proclaimed, to hold such office and to discharge the
functions and responsibilities thereof as of said date. In short, at that time, he
was already qualified to govern his native Sorsogon. This is the liberal
interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was enacted. So
too, even from a literal (as distinguished from liberal) construction, it should be
noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS," not of candidates. Why then should
such qualification be required at the time of election or at the time of the filing
of the certificates of candidacies, as Lee insists? Literally, such qualifications
unless otherwise expressly conditioned, as in the case of age and residence
should thus be possessed when the "elective [or elected] official" begins to
govern, i.e., at the time he is proclaimed and at the start of his term in this
case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giapand
Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure
that our people and country do not end up being governed by aliens, i.e.,
persons owing allegiance to another nation, that aim or purpose would not be
thwarted but instead achieved by construing the citizenship qualification as
applying to the time of proclamation of the elected official and at the start of
his term.
80
But perhaps the more difficult objection was the one raised during the oral
argument34 to the effect that the citizenship qualification should be possessed
at the time the candidate (or for that matter the elected official) registered as a
voter. After all, Section 39, apart from requiring the official to be a citizen, also
specifies as another item of qualification, that he be a "registered voter." And,
under the law35 a "voter" must be a citizen of the Philippines. So therefore,
Frivaldo could not have been a voter-much less a validly registered one if he
was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the
requirement. If the law intended the citizenship qualification to be possessed
prior to election consistent with the requirement of being a registered voter,
then it would not have made citizenship a SEPARATE qualification. The law
abhors a redundancy. It therefore stands to reason that the law intended
CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a
voter presumes being a citizen first. It also stands to reason that the voter
requirement was included as another qualification (aside from "citizenship"),
not to reiterate the need for nationality but to require that the official be
registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the
law states: "a registered voter in the barangay, municipality, city, or province x
x x where he intends to be elected." It should be emphasized that the Local
Government Code requires an elective official to be a registered voter. It does
not require him to vote actually. Hence, registrationnot the actual votingis the
core of this "qualification." In other words, the law's purpose in this second
requirement is to ensure that the prospective official is actually registered in
the area he seeks to govern and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasizedand Lee has not
disputed that he "was and is a registered voter of Sorsogon, and his registration
as a voter has been sustained as valid by judicial declaration x x x In fact, he
cast his vote in his precinct on May 8, 1995."36
So too, during the oral argument, his counsel stead-fastly maintained that
"Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in
1987,1988,1992, then he voted again in 1995. In fact, his eligibility as a voter
was questioned, but the court dismissed (sic) his eligibility as a voter and he
was allowed to vote as in fact, he voted in all the previous elections including
on May 8,1995.37
It is thus clear that Frivaldo is a registered voter in the province where he
intended to be elected.
There is yet another reason why the prime issue of citizenship should be
reckoned from the date of proclamation, not necessarily the date of election or
date of filing of the certificate of candidacy. Section 253 of the Omnibus
Election Code38 gives any voter, presumably including the defeated candidate,
the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate.
This is the only provision of the Code that authorizes a remedy on how to
contest before the Comelec an incumbent's ineligibility arising from failure to
meet the qualifications enumerated under Sec. 39 of the Local Government
Code. Such remedy of Quo Warranto can be availed of "within ten days after
proclamation" of the winning candidate. Hence, it is only at such time that the
issue of ineligibility may be taken cognizance of by the Commission. And since,
at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G.
Frivaldo was already and indubitably a citizen, having taken his oath of
allegiance earlier in the afternoon of the same day, then he should have been
the candidate proclaimed as he unquestionably garnered the highest number of
votes in the immediately preceding elections and such oath had already cured
his previous "judicially-declared" alienage. Hence, at such time, he was no
longer ineligible.
But to remove all doubts on this important issue, we also hold that the
repatriation of Frivaldo RETRO ACTED to the date of the filing of his application
on August 17,1994.
It is true that under the Civil Code of the Philippines,39 "(l)aws shall have
no retroactive effect, unless the contrary is provided." But there are settled
exceptions40 to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino,41 curative statutes are those which undertake to
cure errors and irregularities, thereby validating judicial or administrative
proceedings, acts of public officers, or private deeds and contracts which
otherwise would not produce their intended consequences by reason of some
statutory disability or failure to comply with some technical requirement.They
operate on conditions already existing, and are necessarily retroactive in
operation. Agpalo,42 on the other hand, says that curative statutes are "healing
acts x x x curing defects and adding to the means of enforcing existing
obligations x x x (and) are intended to supply defects, abridge superfluities in
existing laws, and curb certain evils x x x By their very nature, curative statutes
are retroactive xxx (and) reach back to past events to correct errors or
irregularities and to render valid and effective attempted acts which would be
otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes
relating to remedies or modes of procedure, which do not create new or take
away vested rights, but only operate in furtherance of the remedy or
confirmation of such rights, ordinarily do not come within the legal meaning of
a retrospective law, nor within the general rule against the retrospective
operation of statutes.43
A reading of P.D. 725 immediately shows that it creates a new right, and
also provides for a new remedy, thereby filling certain voids in our laws. Thus,
in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino
women (who) had lost their Philippine citizenship by marriage to aliens" and
who could not, under the existing law (C. A. No. 63, as amended) avail of
repatriation until "after the death of their husbands or the termination of their
marital status" and who could neither be benefitted by the 1973 Constitution's
new provision allowing "a Filipino woman who marries an alien to retain her
Philippine citizenship xxx" because "such provision of the new Constitution does
not apply to Filipino women who had married aliens before said constitution
took effect." Thus, P.D. 725 granted a new right to these womenthe right to reacquire Filipino citizenship even during their marital coverture, which right did
not exist prior to P.D. 725. On the other hand, said statute also provided a new
remedy and a new right in favor of other "natural born Filipinos who (had) lost
their Philippine citizenship but now desire to re-acquire Philippine citizenship,"
81
because prior to the promulgation of P.D. 725 such former Filipinos would have
had to undergo the tedious and cumbersome process of naturalization, but with
the advent of P.D. 725 they could now re-acquire their Philippine citizenship
under the simplified procedure of repatriation.
The Solicitor General44 argues:
"By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA
342), since they are intended to supply defects, abridge superfluities in existing
laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and
curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C. A. No. 63 wherein married Filipino women are
allowed to repatriate only upon the death of their husbands, and natural-born
Filipinos who lost their citizenship by naturalization and other causes faced the
difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of
Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal
aberrations and thus its provisions are considered essentially remedial and
curative."
In light of the foregoing, and prescinding from the wording of the
preamble, it is unarguable that the legislative intent was precisely to give the
statute retroactive operation. "(A) retrospective operation is given to a statute
or amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof." 45It is obvious to
the Court that the statute was meant to "reach back" to those persons, events
and transactions not otherwise covered by prevailing law and jurisprudence.
And inasmuch as it has been held that citizenship is a political and civil right
equally as important as the freedom of speech, liberty of abode, the right
against unreasonable searches and seizures and other guarantees enshrined in
the Bill of Rights, therefore the legislative intent to give retrospective operation
to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a
remedial statute must be so construed as to make it effect the evident purpose
for -which it was enacted, so that if the reason of the statute extends to past
transactions, as well as to those in the future, then it will be so applied although
the statute does not in terms so direct, unless to do so would impair some
vested right or violate some constitutional guaranty." 46 This is all the more true
of P.D. 725, which did not specify any restrictions on or delimit or qualify the
right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of
P.D. 725 benefit Frivaldo considering that said law was enacted on June 5,1975,
while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and
applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo
became an American citizen, nevertheless, it is not only the law itself (P.D. 725)
which is tobe given retroactive effect, but even the repatriation granted under
said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the
date of his application therefor, August 17, 1994. The reason for this is simply
that if, as in this case, it was the intent of the legislative authority that the law
should apply to past events i.e., situations and transactions existing even
before the law came into being in order to benefit the greatest number of
former Filipinos possible thereby enabling them to enjoy and exercise the
constitutionally guaranteed right of citizenship, and such legislative intention is
to be given the fullest effect and expression, then there is all the more reason
to have the law apply in a retroactive or retrospective manner to situations,
events and transactions subsequent to the passage of such law. That is, the
repatriation granted to Frivaldo on June 30, 1995 can and should be made to
take effect as of date of his application. As earlier mentioned, there is nothing
in the law that would bar this or would show a contrary intention on the part of
the legislative authority; and there is no showing that damage or prejudice to
anyone, or anything unjust or injurious would result from giving retroactivity to
his repatriation. Neither has Lee shown that there will result the impairment of
any contractual obligation, disturbance of any vested right or breach of some
constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo
deserves a liberal interpretation of Philippine laws and whatever defects there
were in his nationality should now be deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would
prevent prejudice to applicants. If P.D. 725 were not to be given retroactive
effect, and the Special Committee decides not to act, i.e., to delay the
processing of applications for any substantial length of time, then the former
Filipinos who may be stateless, as Frivaldohaving already renounced his
American citizenship was, may be prejudiced for causes outside their control.
This should not be. In case of doubt in the interpretation or application of laws,
it is to be presumed that the law-making body intended right and justice to
prevail.47
And as experience will show, the Special Committee was able to process, act
upon and grant applications for repatriation within relatively short spans of time
after the same were filed.48The fact that such interregna were relatively
insignificant minimizes the likelihood of prejudice to the government as a result
of giving retroactivity to repatriation. Besides, to the mind of the Court, direct
prejudice to the government is possible only where a person's repatriation has
the effect of wiping out a liability of his to the government arising in connection
with or as a result of his being an alien, and accruing only during the
interregnum between application and approval, a situation that is not present in
the instant case.
And it is but right and just that the mandate of the people, already twice
frustrated, should now prevail. Under the circumstances, there is nothing unjust
or iniquitous in treating Frivaldo's repatriation as having become effective as of
the date of his application, i.e., on August 17, 1994. This being so, all questions
about his possession of the nationality qualification whether at the date of
proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of
filing his certificate of candidacy (March 20, 1995) would become moot.
82
Lee contends that the May 1,1995 Resolution 53 of the Comelec Second
Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its
Resolution of May 11, 1995 "became final and executory after five (5) days or
on May 17,1995, no restraining order having been issued by this Honorable
Court."54 Hence, before Lee "was proclaimed as the elected governor on June
30, 1995, there was already a final and executory judgment disqualifying"
Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes
were legally "correct") declaring Frivaldo an alien have also become final and
executory way before the 1995 elections, and these "judicial pronouncements
of his political status as an American citizen absolutely and for all time
disqualified (him) from running for, and holding any public office in the
Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying
Frivaldo was rendered in connection with the 1988 elections while that in G.R.
No. 104654 was in connection with the 1992 elections. That he was disqualified
for such elections is final and can no longer be changed. In the words of the
respondent Commission (Second Division) in its assailed Resolution: 55
"The records show that the Honorable Supreme Court had decided that Frivaldo
was not a Filipino citizen and thus disqualified for the purpose of the 1988 and
1992 elections. However, there is no record of any 'final judgment' of the
disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What
the Commission said in its Order of June 21, 1995 (implemented on June 30,
1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not a
Filipino citizen 'having been declared by the Supreme Court in its Order dated
March 25, 1995, not a citizen of the Philippines.' This declaration of the
Supreme Court, however, was in connection with the 1992 elections."
Indeed, decisions declaring the acquisition or denial of citizenship cannot
govern a person's future status with finality. This is because a person may
subsequently reacquire, or for that matter lose, his citizenship under any of the
modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of
Immigration,56 we held:
"Everytime the citizenship of a person is material or indispensable in a judicial
or administrative case, whatever the corresponding court or administrative
authority decides therein as to such citizenship is generally not considered res
judicata, hence it has to be threshed out again and again, as the occasion
demands."
83
Frivaldo assails the validity of the Lee proclamation. We uphold him for the
following reasons:
itself in its resolution dated May 10, 1992 to be voted for the office of
the city mayor as its resolution dated May 9,1992 denying due course to
petitioner Labo's certificate of candidacy had not yet become final and subject
to the final outcome of this case."
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling
appropriate in this case because Frivaldo was in 1995 in an identical situation
as Labo was in 1992 when the Comelec's cancellation of his certificate of
candidacy was not yet final on election day as there was in both cases a
pending motion for reconsideration, for which reason Comelec issued an
(omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several
others can still be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that
the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's
alleged disqualification as to "bring such awareness within the realm of
notoriety", in other words, that the voters intentionally wasted their ballots
knowing that, in spite of their voting for him, he was ineligible. If Labohas any
relevance at all, it is that the vice-governor and not Leeshould be proclaimed,
since in losing the election, Lee was, to paraphrase Labo again, "obviously not
the choice of the people" of Sorsogon. This is the emphatic teaching of Labo:
"The rule, therefore, is: the ineligibility of a candidate receiving majority votes
does not entitle the eligible candidate receiving the next highest number of
votes to be declared elected. A minority or defeated candidate cannot be
deemed elected to the office."
First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he
(Lee) was not the choice of the sovereign will," and in Aquino vs.
COMELEC,61 Lee is "a second placer, xxx just that, a second placer."
Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he obtained the highest number of
votes in the 1995 elections, henot Lee should be proclaimed. Hence, Lee's
proclamation was patently erroneous and should now be corrected.
"The rule would have been different if the electorate fully aware in fact and in
law of a candidate's disqualification so as to bring such awareness within the
realm of notoriety, would nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to have waived the validity
and efficacy of their votes by notoriously misapplying their franchise or
throwing away their votes, in which case, the eligible candidate obtaining the
next higher number of votes may be deemed elected."
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the
Comelec (Second Division) dated May 1, 1995 and the confirmatory en
banc Resolution of May 11, 1995 disqualifying him for want of citizenship
should be annulled because they were rendered beyond the fifteen (15) day
period prescribed by Section 78 of the Omnibus Election Code which reads as
follows:
84
decided after notice and hearing, not later than fifteen days before the
election" (italics supplied.)
This claim is now moot and academic inasmuch as these resolutions are
deemed superseded by the subsequent ones issued by the Commission (First
Division) on December 19, 1995, affirmed en banc63 on February 23, 1996,
which both upheld his election. At any rate, it is obvious that Section 78 is
merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try
and decide petitions for disqualifications even after the elections, thus:
"SEC. 6. Effect of Disqualification Case. Any candidate who has been declared
by final judgment to be disqualified shall not be voted for, and the votes cast
for him shall not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is voted for and
receives the -winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong." (Italics supplied)
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr.
argues that President Aquino's memorandum dated March 27, 1987 should be
viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether
it decrees a suspension or a repeal is a purely academic distinction because the
said issuance is not a statute that can amend or abrogate an existing law. The
existence and subsistence of P.D. 725 were recognized in the first Frivaldo
case;64 viz, "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725,
Philippine citizenship maybe reacquired by xxx repatriation" He also contends
that by allowing Frivaldo to register and to remain as a registered voter, the
Comelec and in effect this Court abetted a "mockery" of our two previous
judgments declaring him a non-citizen. We do not see such abetting or
mockery. The retroactivity of his repatriation, as discussed earlier, legally cured
whatever defects there may have been in his registration as a voter for the
purpose of the 1995 elections. Such retroactivity did not change his
disqualifications in 1988 and 1992, which were the subjects of such previous
rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy
to question the ineligibility of a candidate, citing the Comelec's authority under
Section 78 of the Omnibus Election Code allowing the denial of a certificate of
candidacy on the ground of a false material representation therein as required
by Section 74. Citing Loong, he then states his disagreement with our holding
that Section 78 is merely directory. We really have no quarrel. Our point is that
Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec
Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid
because they were issued "not later than fifteen days before the election" as
prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold
that the Comelec did not commit grave abuse of discretion because "Section 6
of R. A. 6646 authorizes the Comelec to try and decide disqualifications even
after the elections." In spite of his disagreement with us on this point, i.e., that
Section 78 "is merely directory," we note that just like us, Mr. Justice Davide
nonetheless votes to "DISMISS G.R. No. 120295." One other point. Loong, as
quoted in the dissent, teaches that a petition to deny due course under Section
78 must be filed within the 25-day period prescribed therein. The present case
however deals with the period during which the Comelec may decide such
petition. And we hold that it may be decided even after thefifteen day period
mentioned in Section 78. Here, we rule that a decision promulgated by the
Comelec even after the elections is valid but Loong held that a petition filed
beyond the 25-day period is out of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the
unique factual circumstances of Frivaldo, repatriation may be given retroactive
effect. He argues that such retroactivity "dilutes" our holding in the first
Frivaldo case. But the first (and even the second Frivaldo) decision did not
directly involve repatriation as a mode of acquiring citizenship. If we may
repeat, there is no question that Frivaldo was not a Filipino for purposes of
determining his qualifications in the 1988 and 1992 elections. That is settled.
But his supervening repatriation has changed his political status not in 1988 or
1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless
prior to his repatriation, saying that "informal renunciation or abandonment is
not a ground to lose American citizenship." Since our courts are charged only
with the duty of the determining who are Philippine nationals, we cannot rule
on the legal question of who are or who are not Americans. It is basic in
international law that a State determines ONLY those who are its own citizens
not who are the citizens of other countries. 65 The issue here is: the Comelec
made a finding of fact that Frivaldo was stateless and such finding has not been
shown by Lee to be arbitrary or whimsical. Thus, following settled case law,
such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins
to Frivaldo in all three previous elections, should be declared winner because
"Frivaldo's ineligibility for being an American was publicly known." First, there is
absolutely no empirical evidence for such "public" knowledge. Second, even if
there is, such knowledge can be true post facto only of the last two previous
elections. Third, even the Comelec and now this Court were/are still
deliberating on his nationality before, during and after the 1995 elections. How
then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code
refers to the qualifications of elective local officials, i.e., candidates, and
not elected officials, and that the citizenship qualification [under par. (a) of that
section] must be possessed by candidates, not merely at the commencement
of the term, but by election day at the latest. We see it differently. Section 39,
par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to
"candidates." If the qualifications under par. (a) were intended to apply to
"candidates" and not elected officials, the legislature would have said so,
instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if
85
EPILOGUE
date of his application therefor, during the pendency of which he was stateless,
he having given ' up his U. S. nationality. Thus, in contemplation of law, he
possessed the vital requirement of Filipino citizenship as of the start of the term
of office of governor, and should have been proclaimed instead of Lee.
Furthermore, since his reacquisition of citizenship retroacted to August 17,
1994, his registration as a voter of Sorsogon is deemed to have been validated
as of said date as well. The foregoing, of course, are precisely consistent with
our holding that lack of the citizenship requirement is not a continuing disability
or disqualification to run for and hold public office. And once again, we
emphasize herein our previous rulings recognizing the Comelec's authority and
jurisdiction to hear and decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the
electoral laws of our country to give fullest effect to the manifest will of our
people,66 for in case of doubt, political laws must be
interpreted to give life and spirit to the popular mandate freely expressed
through the ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. Consistently, we have held:
"x x x (L)aws governing election contests must be liberally construed to the end
that the will of the people in the choice of public officials may not be defeated
by mere technical objections (citations omitted)." 67
The law and the courts must accord Frivaldo every possible protection,
defense and refuge, in deference to the popular will. Indeed, this Court has
repeatedly stressed the importance of giving effect to the sovereign will in
order to ensure the survival of our democracy. In any action involving the
possibility of a reversal of the popular electoral choice, this Court must exert
utmost effort to resolve the issues in a manner that would give effect to the will
of the majority, for it is merely sound public policy to cause elective offices to
be filled by those who are the choice of the majority. To successfully
challenge a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic 68 to constitutional
and legal principles that overriding such ineligibility and thereby giving effect to
the apparent will of the people, would ultimately create greater prejudice to the
very democratic institutions and juristic traditions that our Constitution and
laws so zealously protect and promote. In this undertaking, Lee has miserably
failed.
In Frivaldo's case, it would have been technically easy to find fault with his
cause. The Court could have refused to grant retroactivity to the effects of his
repatriation and hold him still ineligible due to his failure to show his citizenship
at the time he registered as a voter before the 1995 elections. Or, it could have
disputed the factual findings of the Comelec that he was stateless at the time
of repatriation and thus hold his consequent dual citizenship as a
disqualification "from running for any elective local position." But the real
essence of justice does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of the dynamic role
of law as a brick in the ultimate development of the social edifice. Thus, the
Court struggled against and eschewed the easy, legalistic, technical and
sometimes harsh anachronisms of the law in order to evoke substantial justice
86
STREET, J.:
This is an original petition for the writs of mandamus and injunction, filed in this
court by Lichauco & Company against the respondents, Silverio Apostol, as
Director of Agriculture, and Rafael Corpus, as Secretary of Agriculture and
Natural Resources. An order having been issued by this court requiring the
respondents to appear and show cause why the relief prayed for should not be
granted, the Attorney-General presented a return, in the nature of a demurrer,
in their behalf; and the cause is now before us for the determination of the
questions thus presented.
It is alleged in the complaint that the petitioner is a corporation duly organized
under the laws of the Philippine Islands and that it has been engaged for
several years in the business of importing carabao and other draft animals into
the Philippine Islands and that it is now desirous of importing from Pnom-Pehn,
in French Indo-China, a shipment of draft cattle and bovine cattle for the
manufacture of serum but that the respondent Director of Agriculture refuses to
admit said cattle, except upon the condition, stated in Administrative Order No.
21 of the Bureau of Agriculture, that said cattle shall have been immunized
from rinderpest before embarcation at Pnom-Pehn. The petitioner therefore
asks for an order requiring the respondents to admit the contemplated
importation of cattle into the Islands and enjoining them from the enforcement
of said administrative order in the future.
The petitioner asserts that under the first proviso to section 1762 of the
Administrative Code, as amended by Act No. 3052 of the Philippine Legislature,
it has "an absolute and unrestricted right to import carabao and other draft
animals and bovine cattle for the manufacture of serum from Pnom-Pehn, IndoChina, into the Philippine Islands" and that the respondents have no authority
to impose upon the petitioner the restriction referred to above, requiring the
immunization of the cattle before shipment.
The respondents, on the other hand, rely upon section 1770 of the
Administrative Code and upon Administrative Order No. 21 of the Bureau of
Agriculture, promulgated on July 29, 1922, by the Director of Agriculture, in
relation with Department Order No. 6, promulgated on July 28, 1922, by the
Secretary of Agriculture and Natural Resources, as supplying authority for the
action taken.
Such portions of the laws above-mentioned as are material to the present
controversy will be set out in full, preceded by section 1762 of the
Administrative Code, as originally enacted, to which will be appended the
pertinent parts of the orders referred to and the communication of the Director
of Agriculture of August 31, 1922.
1. First paragraph of section 1762 of Administrative Code in original
form:
87
ORDER }
NO. 6.
}Series
}
of
Agriculture,
ADMINISTRATIVE
ORD
NO. 21
Re importation of cattle, carabaos, and pigs from French IndoChina, Hongkong and India.
1. Pursuant to the provisions of Department Order No. 6, series
of 1922, of the Department of Agriculture and Natural
Resources, the present regulations of the Bureau of Agriculture
governing the importation of livestock from French Indo-China
and Hongkong are hereby amended to the effect that the
importation of livestock of the species named in the
aforementioned Department Order is hereby prohibited from
French Indo-China, Hongkong and India. However, animals
immunized against rinderpest, for which the importer before
placing his order shall have obtained from the Director of
Agriculture a written permit to import them from the above
named countries, may be allowed entrance into the Philippine
Islands.
2. This order shall take effect on and after August 1, 1922.
6. Communication of August 31, 1922, from the Acting Director of
Agriculture to Faustino Lichauco (in part):
88
xxx
xxx
Very respectfully,
SILVERIO
Acting Director of Agriculture.
APOSTOL,
Upon glancing over the matter above collated, it will be seen at once that
section 1770 of the Administrative Code on its face authorizes the action taken
by the Secretary of Agriculture and Natural Resources in closing our ports (in
the manner and to the extent indicated in Department Order No. 6) to the
importation of cattle and carabao from French Indo-China, supposing of course,
as everybody knows and as the petitioner does not deny, that the disease of
rinderpest exists in that country.
It is claimed, however, that section 1762 of the Administrative Code, so far as it
authorizes restriction upon the importation of draft cattle and bovine cattle for
the manufacture of serum, has been impliedly repealed by the amendatory Act
No. 3052, which is of later enactment that the Administrative Code; and in this
connection reliance is chiefly placed on the first proviso to section 1762, as
amended by said Act No. 3052, which is in these words: "Provided,
however, That the Director of Agriculture shall in all cases permit the
importation, bringing or introduction of draft cattle and bovine cattle for the
manufacture of serum." This then is the first and principal question in the case,
namely, whether section 1770 has been repealed by implication, in so far as it
relates to draft animals and bovine cattle for the manufacture of serum. We say
repealed by implication, for it will be noted that that Act No. 3052 has no
repealing clause, and it contains only one section, i. e., that amending section
1762 of the Administrative Code.
We are of the opinion that the contention of the petitioner is untenable, for the
reason that section 1762, as amended, is obviously of a general nature, while
section 1770 deals with a particular contingency not made the subject of
legislation in section 1762. Section 1770 is therefore not to be considered as
inconsistent with section 1762, as amended; on the other hand, it must be
treated as a special qualification of section 1762. Of course the two provisions
are different, in the sense that if section 1762, as amended, is considered
alone, the cattle which the petitioner wishes to bring in can be imported
without restriction, while if section 1770 is still in force the cattle, under the
conditions stated in the petition, can be brought in only upon compliance with
the requirements of Administrative Order No. 21. But this difference between
the practical effect of the two provisions does not make then inconsistent in the
sense that the earlier provision (sec. 1770) should be deemed repealed by the
amendatory Act (3052).
That section 1770 is special, in the sense of dealing with a special contingency
not dealt with in section 1762, is readily apparent upon comparing the two
provisions. Thus, we find that while section 1762 relates generally to the
subject of the bringing of animals into the Island at any time and from any
place, section 1770 confers on the Department Head a special power to deal
with the situation which arises when a dangerous communicable disease
prevails in some defined foreign country, and the provision is intended to
operate only so long as that situation continues. Section 1770 is the backbone
of the power to enforce animal quarantine in these Islands in the special
emergency therein contemplated; and if that section should be obliterated, the
administrative authorities here would be powerless to protect the agricultural
industry of the Islands from the spread of animal infection originating abroad.
We note that the argument for unrestricted importation extends only to the
importation of cattle for draft purposes and bovine cattle for the manufacture of
serum, leaving section 1770 theoretically in full effect as regards the
importation of cattle for other purposes, as where they are imported for
slaughter; but the importation of cattle for draft purposes is the principal thing,
and unless that can be regulated under the conditions and to the extent
attempted by the respondents in this case, the power given in section 1770 is
obviously worthless.
In our opinion section 1762, as amended, and section 1770 must be
construed in pari materia as harmonious parts of the law dealing with animal
quarantine; and section 1762, as amended, can be given effect only in so far as
it is not restricted by section 1770. Here, as always, the general must yield to
the particular.
If the Congress of the United States should this day repeal the Chinese
Exclusion Law so far as it affects these Islands, and should declare that all
persons of Chinese nationality shall be at liberty to enter the Philippine Islands
89
without restriction, would anybody suppose that such enactment would have
the effect of abolishing the power to maintain quarantine against any Chinese
port where cholera or bubonic plaque might hereafter be raging in epidemic
form? Yet the question now before us is not fundamentally different from the
one thus supposed.
The judicial precedents are conclusive to the effect that no implied repeal of a
special provisions of the character of the one now under consideration will
result from the enactment of broader provision of a general nature. In other
words, a general statute without negative words does not repeal a previous
statute which is particular, even though the provisions of one be different from
the other. (Rymer vs. Luzerne County, 12 L. R. A., 192; Petri vs. F. E. Creelman
Lumber Co., 199 U. S., 487; 50 L. ed., 281.)
Wherever there is a particular enactment and a general enactment in the same
statute, and the latter, taken in its most comprehensive sense, would overrule
the former, the particular enactment must be operative, and the general
enactment must be taken to affect only the other parts of the statute to which
it may properly apply. (Sir John Romilly, Master of the Rolls, in Pretty vs. Solly,
26 Beav., 606, 610.)
The additional words of qualification needed to harmonize a general and a prior
special provision in the same statute should be added to the general provision,
rather than to the special one. (Rodgers vs. United States, 185 U. S., 82; 46 L.
ed., 816.)
Specific legislation upon a particular subject is not affected by a general law
upon the same subject unless it clearly appears that the provision of the two
laws are so repugnant that the legislature must have intended by the later to
modify or repeal the earlier legislation. The special act and the general law
must stand together, the one as the law of the particular subject and the other
as the general law of the land. (Ex Parte United States, 226 U. S., 420; 57 L.
ed., 281; Ex Parte Crow Dog, 109 U. S., 556; 27 L. ed., 1030; Partee vs. St. Louis
& S. F. R. Co., 204 Fed. Rep., 970.)
Where there are two acts or provisions, one of which is special and particular,
and certainly includes the matter in question, and the other general, which, if
standing alone, would include the same matter and thus conflict with the
special act or provision, the special must be taken as intended to constitute an
exception to the general act or provision, especially when such general and
special acts or provisions are contemporaneous, as the Legislature is not to be
presumed to have intended a conflict. (Crane vs. Reeder and Reeder, 22 Mich.,
322, 334; University of Utah vs. Richards, 77 Am. St. Rep., 928.)
It is well settled that repeals by implication are not to be favored. And where
two statutes cover, in whole or in part, the same matter, and are not absolutely
irreconcilable, the duty of the court no purpose to repeal being clearly
expressed or indicated is, if possible, to give effect to both. In other words, it
must not be supposed that the Legislature intended by a latter statute to repeal
a prior one on the same subject, unless the last statute is so broad in its terms
and so clear and explicit in its words as to show that it was intended to cover
the whole subject, and therefore to displace the prior statute. (Frost vs. Wenie,
157 U. S., 46; 39 L. ed., 614, 619.)
As stated in the pages of the two most authoritative legal encyclopedias, the
rule is that a prior legislative act will not be impliedly repealed by a later act
unless there is a plain, unavoidable and irreconcilable repugnancy between the
two. If both acts can by any reasonable construction stand together, both will
be sustained. (36 Cyc., 1074- 1076; 26 Am. & Eng. Encyc. Law, 2d ed., 725726.)
A masterly analysis of the decisions of the United States Courts pertinent to the
matter now in hand will be found in the monographic article on "Statutes and
Statutory Construction," written by Chas. C. Moore and prefixed as a General
Introduction to Federal Statutes Annotated. The discussion there given is too
lengthy to be here reproduced in full, but some of the observations of the
learned author are so appropriate to the case before us that we cannot forego
the temptation to include the same in this opinion. Says the writer: "The various
provisions of an act should be read so that all may, if possible, have their due
and conjoint effect without repugnancy or inconsistency. The sections of a code
relative to any subject must be harmonized and to that end the letter of any
section may sometimes be disregarded. But where absolute harmony between
parts of a statute is demonstrably non-existent, the court must reject that one
which is least in accord with the general plan of the whole, or if there be no
such ground for choice between inharmonious section, the later section being
the last expression of the legislative mind must, in construction, vacate the
former to the extent of the repugnancy." (1 Fed. Stat. Ann., 2d ed., 49-50.)
And speaking with reference to the rule by which special provisions are held to
dominate over general provisions in the same or later laws, the author
proceeds: " 'it is an old and familiar rule,' said Mr. Justice Lamar, 'that where
there is in the same statute a particular enactment, and also a general one,
which in its most comprehensive sense would include what is embraced in the
former, the particular enactment must be operative, and the general
enactment must be taken to affect only such cases within its general language
as are not within the provisions of the particular enactment.' And the Justice
proceeded to apply that rule in the construction of a statute upon which there
had been much ingenious argument and a decided conflict of authority in the
inferior federal courts. The stature was an act of Congress of 1876, declaring
nonmailable 'every obscene . . . book, pamphlet, paper, writing, print, or other
publication of an indecent character,' and other enumerated articles, and
making it a misdemeanor to deposit any of them for mailing. In a prosecution
under the act, the Circuit Court certified to the Supreme Court the following
question: 'Is the knowingly depositing in the mails of an obscene letter, inclosed
in an envelope or wrapper upon which there is nothing but the name and
address of the person to whom the letter is written, an offense within the act?'
On behalf of the government it was contended that the word 'writing'
comprehended such a letter, but the Supreme Court held otherwise. In the
course of his argument in support of the view of the court, Justice Lamar
pointed out that the statute, after enumeration what articles shall be
90
fact that rinderpest exists in the regions referred to in Department Order No. 6,
there is, and can be no dispute; and when the Department Head declared that
the disease prevails in those regions and that there is danger of spreading it by
the importation of cattle and carabao into this country, he was acting upon a
matter within his province, and we are not disposed to review the conclusion.
It has been suggested that the regulative power vested in the Director of
Agriculture under section 1770 of the Administrative Code with respect to the
admission of cattle into the Philippine Islands attaches only when the
importation has been effected; and that the said Director has no authority to
dictate the measures to be taken by the importer before the cattle are
embarked for transportation to these Islands. This contention, in our opinion,
reflects a mistaken point of view with reference to the effect of the regulations;
and the answer is to be found in the consideration that the regulation in
question has prospective reference to the condition of the cattle upon their
arrival here. In other words, the prior immunization of the cattle is made a
condition precedent to the right to bring them in; as much as to say, that only
animals conforming to the required type will be admitted. The importer is thus
left at entire liberty in respect to the taking of the necessary measures to gain
admittance for his cattle in our ports; and if he fails to do so, the penalty merely
is that the cattle are not admitted.
Upon the whole we are of the opinion that the petition does not show sufficient
ground for granting the writs ofmandamus and injunction. The demurrer
interposed thereto by the respondents in their return to the order to show
cause, dated October 7, 1922, is therefore sustained, and the temporary
restraining order heretofore promulgated in this cause, dated September 21,
1922, is dissolved; and unless within five days after notification hereof the
petitioner shall so amend his petition as to show a sufficient cause of action, an
order absolute will be entered, dismissing the same, with costs. So ordered.
Malcolm, Avancea, Villamor, and Ostrand, JJ., concur.
Our conclusion then is that section 1770 of the Administrative Code remains in
full force; and the determination of this question is we think necessarily fatal to
the petitioner's case.
Separate Opinions
91
Section seventeen hundred and sixty-two of Act Numbered Twentyseven hundred and eleven, known as the Administrative Code, is
hereby amended to read as follows:
Hence, Act No. 3052 becomes, and is, a complete substitute for section 1762 of
Act No. 2711, which reads as follows:
SEC. 1762. Bringing of diseased animal into Islands forbidden.
Except upon permission of the Director of Agriculture, with the
approval of the head of Department first had, it shall be unlawful for
any person knowingly to ship or otherwise bring into the Philippine
Islands any animal suffering from, infected with, or dead of any
dangerous communicable disease, or any effects pertaining to such
animal which are liable to introduce such disease into the Philippine
Islands.
Any such animal or its effects may be permitted by the Director of
Agriculture, with the approval of the head of Department first had, to
enter the Islands under such conditions as to quarantine, cremation, or
other disposal as he may direct, or which shall be deemed by him
sufficient to prevent the spread of any such disease.
As amended by Act No. 3052, section 1762 reads as follows:
SEC. 1762. Bringing of animals imported from foreign countries into
the Philippine Islands. It shall be unlawful for any person or
corporation to import, bring or introduce live cattle into the Philippine
Islands from any foreign country. The Director of Agriculture may, with
the approval of the head of the department first had, authorize the
importation, bringing or introduction of various classes of thoroughbred
cattle from foreign countries for breeding the same to the native cattle
of these Islands, and such as may be necessary for the improvement of
the breed, not to exceed five hundred head per annum: Provided,
however, That the Director of Agriculture shall in all cases permit the
importation, bringing or introduction of draft cattle and bovine cattle
for the manufacture of serum: Provided, further, That all live cattle
from foreign countries the importation, bringing or introduction of
which into the Islands is authorized by this Act, shall be submitted to
regulations issued by the Director of Agriculture, with the approval of
the head of the department, prior to authorizing its transfer to other
provinces.
At the time of the approval of this Act, the Governor-General shall issue
regulations and others to provide against a raising of the price of both
fresh and refrigerated meat. The Governor-General also may, by
executive order, suspend this prohibition for a fixed period in case local
conditions require it.
It was approved March 14, 1922.
92
Under the former provision of the Act thoroughbred cattle cannot be imported
without the consent of the Director of Agriculture, "without the approval of the
head of the department first had." But as to draft cattle and bovine cattle, the
Act expressly provides:
That the Director of Agriculture shall in all cases permit the
importation.
That is to say, as to thoroughbred cattle, he may or may not grant the permit,
and then only in a limited number. But as to draft cattle and bovine cattle for
the manufacture of serum, he "shall in all cases permit the importation." As to
such cattle it is not a matter of his choice or discretion. But the majority opinion
holds that he is given that power and discretion under section 1770 of Act No.
2711, which reads as follows:
SEC. 1770. Prohibition against bringing of animals from infected
foreign countries. When the Department Head shall be general order
that a dangerous communicable animal disease prevails in any foreign
country, port, or place and that there is danger of spreading such
disease by the importation of domestic animals therefrom, it shall be
unlawful for any person knowingly to ship or bring into the Philippine
Islands any such animal, animal effects, parts, or products from such
place, unless the importation thereof shall be authorized under the
regulations of the Bureau of Agriculture.
It will be noted that section 1770 was enacted in 1917, and that Act No. 3052
was enacted March 14, 1922, five years after section 1770 became a law. It will
also be noted that the rules and regulation here sought to be enforced were
promulgated in July, 1922, under section 1770, and four months after Act No.
3052 became a law. That is to say, that here you have rules and regulations of
a subordinate department promulgated in July, 1922, that are in dire0ct conflict
with an Act of the Legislature approved March, 1922. But it is contended that
one is a special and the other a general law, and that the two Acts should be
construed in pari materia. The construction overlooks the fact that the force
and effect of section 1770 of Act No 2711 is founded upon section 1762, and
that both are sections of the same general Act, and that when section 1762 is
repealed, as it is, by Act No. 3052, in so far as it applies to draft and bovine
cattle, there is nothing left upon which section 1770 can operate or to which it
would apply. That is to say, that section 1762 and section 1770 are both
sections of a general Act, and part of one and the same Act, and Act No. 3052
expressly repeals section 1762, and by doing so it repeals section 1770, in so
far as it applies to draft and bovine cattle for the manufacture of serum.
For illustration: Suppose that section 1762 had never been amended by Act No.
3052, and that the Legislature enacted a law expressly repealing the whole
section, how then would section 1770 operate, and to what would it apply, and
how and where would it be in force and effect? There would be nothing to which
it could apply. Section 1770 is absolutely dependent upon section 1762, without
which it cannot be of any force or effect. Both of them are sections of the same
general law, and one is dependent upon the other, hence, when you amend or
repeal section 1762, you modify or repeal section 1770, in so far as it relates to,
or is a part of, section 1762.lawphil.net
Section 1770 is entitled:
Prohibition against bringing of animals from infected foreign countries.
Section 1762, as amended by Act No. 3052, is entitled:
Bringing of animals imported from foreign countries into the Philippine
Islands.
Section 1762, as amended, recites:
That the Director of Agriculture shall in all cases permit the
importation, etc.
The word "importation" has a well-defined meaning, and must have been used
with reference to its legal meaning.
Words and Phrases, volume IV, page 3438, says:
"The literal meaning of "importation" is to bring in with intent to land. It
means a bringing into some port, harbor, or haven, with an intent to
land the goods there. It takes place when the vessel arrives at a port of
entry, intending there to discharge her cargo." (Kidd vs. Flagler [U.S.],
54 Fed., 367, 369; The Mary [U.S.], 16 Fed. Cas., 932, 933.)
Importation is not the making entry of goods at the customhouse, but
merely the bringing them into port; and the importation is complete
before entry at the customhouse. (United States vs. Lyman [U.S.], 26
Fed. Cas., 1024, 1028; Perots vs. United States, 19 Fed. Cas., 258.)
Act Cong. July 1, 1812, c. 112, providing a double duty on all goods,
wares, and merchandise imported into the United States from and after
the passage of the acts, means not only that there shall be an arrival
within the limits of the United States and of a collection district, but
also within the limits of some port of entry. (Arnold vs. United States,
13 U. S. [9 Cranch], 104, 120; 3 L. ed., 671.)
An article is not imported from a foreign country, within the meaning of
the tariff laws, until it actually arrives at a port of entry of the United
States, and the importation is governed by the law in force at the time
of such arrival; and hence under the Treaty of Paris, by which Spain
ceded the Philippine Islands to the United States, and which took effect
by the exchange of ratification and the president's proclamation on
April 1, 1899, which repealed the existing tariff duties on goods
93
brought from those islands, the goods, arriving at a port of entry of the
United States from Philippine ports after its taking effect, were not
subject to duty, although they were shipped before April 11th.
(American Sugar Refining Co. vs. Bidwell [U.S.], 124 Fed., 677,
681.)lawphil.net
Applying this definition, the legislative Act says:
That the Director of Agriculture shall in all cases permit the
importation, etc.
Giving to the word "importation," as used in the Act, its legal meaning, it is the
express duty of the Director of Agriculture to permit the bringing or introduction
of draft cattle and bovine cattle with the ports and harbors of the Philippine
Islands when they are brought here with intent to land. That is the definition
given to the word "importation" by both the Federal and the Supreme Courts of
the United State. That is to say, that in all cases it is the express duty of the
Director of Agriculture to permit the bringing or introduction of draft cattle and
bovine cattle for the manufacture of serum within the jurisdiction, ports and
harbors of the Philippine Islands. If that part of Act No. 3052 does not mean
what it says, it does not mean anything. Again, it must be conceded that the
Legislature of the Philippine Islands has no authority to make or enforce any law
beyond its jurisdiction, and that it never intended to do so.
As the majority opinion states, the case is submitted to the court on the
demurrer of the defendants to the complaint. Hence, all of the material
allegations of the complaint are admitted.
The defendants rely upon Department Order No. 6, as follows:
DEPARTMENT
NO. 6.
ORDER }
}Series
}
of
ORDER }
}
}
94
bovine cattle for the manufacture of serum," it would have said so, as it did in
the previous provision of the Act for the importation of thoroughbred cattle. But
it is contended that, notwithstanding Act No. 3052, section 1770 is not repealed
and remains in full force and effect.
Upon the question of where and how a statute is repealed, Lewis' Sutherland
Statutory Construction is a recognized as standard authority in all the courts. In
section 247 (vol. I), the author says:
. . . therefore, the former law is constructively repealed, since it cannot
be supposed that the law-making power intends to enact or continue in
force laws which are contradictions. The repugnancy being ascertained,
the later act or provision in date or position has full force, and displace
by repeal whatever in the precedent law is inconsistent with it.
Subsequent legislation repeals previous inconsistent legislation
whether it expressly declares such repeal or not. In the nature of things
it would be so, not only on the theory of intention, but because
contradictions cannot stand together.
"Where the later or revising statute clearly covers the whole subjectmatter of antecedent acts, and it plainly appears to have been the
purpose of the legislature to give expression in it to the whole law on
the subject, the latter is held to be replaced by necessary implication."
An affirmative enactment of a new rule implies a negative of whatever
is not included, or is different; and if by the language used a thing is
limited to be done is a particular form or manner, it includes a negative
that it shall not be done otherwise. An intention will not be ascribed to
the law-making power to establish conflict and hostile systems upon
the same subject, or to leave in force provisions of law by which the
later will of the legislature may be thwarted and overthrown. Such a
result would render legislation a useless and idle ceremony, and
subject the law to the reproach of uncertainly and unintelligibility. (Sec.
249.)
Where a later act grants to an officer or tribunal a part of a larger
power already possessed, and in terms which interpreted by
themselves import a grant of all the power the grantee is intended to
exercise, it repeals the prior act from which the larger power had been
derived. (Sec. 250.)
In the leading case of Gorham vs. Luckett (6 B. Mon., 146), Marshall, J., says:
This is not a case of the re-enactment of a former law in the same
words, or with additional provisions, nor of a regrant of a pre-existing
power to the same or a greater extent. It is not a case of cumulative or
additional power or right or remedy. Nor does it come within the rule
that a subsequent affirmative statute does not repeal a previous one,
which can only apply where both statute can have effect. This is a
formal and express grant of limited power to a depository which
already had unlimited power. And it can have no effect, nor be ascribed
to any other purpose, but that of limiting the extent of the pre-existing
power. If certain provisions of two statutes are identical, the last need
not be construed as repealing, but merely as continuing or re-affirming,
the first, for which there might be various reasons. So, if a statute give
a remedy, or provide that certain acts shall be sufficient for the
attainment or security of certain objects, and a subsequent statute
declare that a part of the same remedy or some of the same acts, or
other acts entirely different, shall suffice for the accomplishment of the
same object, here the latter act does not necessarily repeal the former,
except so far as it may be expressed or implied in the former that the
end shall be attained by no other mode but that which it prescribes. If
there be no such restriction in the first, there is no conflict between
them. Both may stand together with full effect, and the provisions of
either may be pursued.
But if a subsequent statute requires the same, and also more than a
former statute had made sufficient, this is in effect a repeal of so much
of the former statute as declares the sufficient of what it prescribes.
And if the last act professes, or manifestly intends to regulate the
whole subject to which it relates, it necessary supersedes and repeals
all former acts, so far as it differs from them in its prescriptions. The
great object, then is, to ascertain the true interpretation of the last act.
That being ascertained, the necessary consequence is, that the
legislative intention thus decided from, it must prevail over any prior
inconsistent intention to be deduced from a previous act.
. . . The difficulty, or rather the embarrassment in the case, arises from
the fact that a previous law had given to the same grantee unlimited
power on the same subject, and that this twentieth section makes no
reference to the previous law, and contains no express words or
restriction or change, but granting an express and limited power, is
framed as if it were the first and only act on the subject. But do not
these circumstance indicate that it is to be construed as if it were the
only act on the subject? Or shall the first act, which is inferior in
authority so far as they conflict, so far affect the construction of the
last, as to deprive it of all effect? We say the last act must have effect
according to its terms and its obvious intent. And as both cannot have
full operation according to their terms and intent, the first and not the
last act must yield.
Section 1770 was enacted in 1917, and Act No. 3052 in 1922, five years later,
and the rules and regulations sought to be enforced are founded upon section
1770 and were promulgated about five months after Act No. 3052 became a
law. The two sections are not only inconsistent, but there is a direct conflict
between them as to the importation of draft and bovine cattle, especially as to
the promulgated rules and regulations. The Legislature says that as to draft and
bovine cattle, the permit shall be granted in all cases, and defendants say that
we will not grant the permit under any circumstances, unless you comply with
95
the rules and regulations that we have promulgated, which are impossible of
performance, and are in direct conflict with Act No. 3052 of the Legislature.
Legislature says he must grant, and has imposed upon it the performance of
impossible rules and regulations as a condition precedent to the granting of the
permit.
Under the majority opinion, as to the importation of draft and bovine cattle, we
have a government of rules and regulations promulgated by a subordinate of
the government which are in direct conflict with the legislative Act.
By the majority opinion all that portion of Act No. 3052, which says "that the
Director of Agriculture shall in all cases permit the importation, etc.," becomes
a nullity and is overruled by a subordinate branch of the Government. In legal
effect, it holds that, in so far as there is a conflict between them, the provisions
of section 1770 must prevail over the provisions of Act No. 3052. That is not
good law. In so far as there is a conflict, Act No. 3052 should be construed as
repealing section 1770, for the simple reason that Act No. 3052 became a law
about five years after section 1770.
The majority opinion violates every canon of statutory construction. For such
reasons, with all due respect to it, I vigorously dissent.
EN BANC
[G.R. No. 100210. April 1, 1998]
THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. OSCAR B.
PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148
and ANTONIO A. TUJAN, respondents.
DECISION
MARTINEZ, J.:
Is the Court of Appeals, in affirming the order of the Regional Trial Court,
correct in ruling that Subversion is the main offense in a charge of Illegal
Possession
of
Firearm
and Ammunition
in
Furtherance of
Subversion under P.D. No. 1866, as amended, and that, therefore, the said
charge should be quashed in view of a previous charge of Subversion under
R.A. No. 1700, as amended by P.D. No. 885, against the same accused pending
in another court?
Stated differently, is the accused charged with the same offense in both
cases, which would justify the dismissal of the second charge on the ground of
double jeopardy?
Under the facts alleged, the petitioner has brought itself squarely within those
provisions and the Director of Agriculture has denied him the permit which the
96
97
The trial court, in an order dated October 12, 1990, granted the motion to
quash the Information in Criminal Case No. 1789, the dispositive portion of the
order reading:
WHEREFORE, the motion to quash the information is hereby GRANTED,
but only in so far as the accused may be placed in jeopardy or in danger
of being convicted or acquitted of the crime of Subversion and as a
consequence the Information is hereby quashed and the case dismissed
without prejudice to the filing of Illegal Possession of Firearm.
SO ORDERED.[16]
It is best to quote the disquisition of the respondent court in quashing the
information and dismissing the case:
xxxxxxxxx
In other words, the main offense the accused is being charged in this
case is also Subversion considering that the alleged Illegal Possession
of the Firearm and Ammunition is only in furtherance thereof.
Now, subversion being a continuing offense as has been previously held by the
Supreme Court, the fact that the accused has been previously charged of
Subversion before another court before the institution of this instant case is just
a continuing offense of his former charge or that his acts constituting
subversion is a continuation of the acts he committed before.
The court therefore cannot subscribe to the position taken by the prosecution
that this case is very different from the other case and that double jeopardy will
attach in this particular case.
This court agrees with the position taken by the defense that double jeopardy
will attach to the accusation of subversion, punishable now under Republic Act
1700, as Rule 117 of the Rules of Court particularly Section 1 thereof, provides:
Time to move to quash- At any time before entering his plea, the accused may
move to quash the complaint or information.(1a)
In other words, there is no necessity that the accused should be arraigned first
before he can move to quash the information. It is before he pleads which the
accused did in this case.
98
(2) it was deprived of due process to prosecute and prove its case against
private respondent Antonio Tujan in Criminal Case No. 1789.
entity, who shall willfully or knowingly allow any of the firearms owned by such
firm, company, corporation or entity to be used by any person or persons found
guilty of violating the provisions of the preceding paragraphs.
The penalty of prision mayor shall be imposed upon any person who shall carry
any licensed firearm outside his residence without legal authority therefor.
(Emphasis ours)
The above-quoted provisions of P.D. No. 1866 are plain and simple. Under
the first paragraph of Section 1, the mere possession of an unlicensed
firearm or ammunition is the crime itself which carries the penalty
of reclusion temporal in its maximum period to reclusion perpetua. The third
paragraph of the same Section makes the use of said firearm and ammunition
in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection or subversion a circumstance to increase the penalty to death.
Thus, the allegation in the Information in Criminal Case No. 1789 that the
unlicensed firearm found in the possession of Antonio Tujan, a member of the
communist party of the Philippines and its front organization, was used in
furtherance of or incident to, or in connection with the crime of
subversion does not charge him with the separate and distinct crime of
Subversion in the same Information, but simply describes the mode or
manner by which the violation of Section 1 of P.D. No. 1866 was
committed[21] so as to qualify the penalty to death.
There is, therefore, only one offense charged in the questioned
information, that is, the illegal possession of firearm and ammunition,
qualified by its being used in furtherance of subversion. [22] There is nothing in
P.D. No. 1866, specifically Section 1 thereof, which decrees categorically or by
implication that the crimes of rebellion, insurrection or subversion are the very
acts that are being penalized. This is clear from the title of the law itself which
boldly indicates the specific acts penalized under it:
CODIFYING
THE
LAWS
ON ILLEGAL/UNLAWFUL
POSSESSION, MANUFACTURE, DEALING
IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR
EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS,
AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR
CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES.
(Emphasis ours)
On the other hand, the previous subversion charge against Antonio Tujan
in Criminal Case No. 64079, before the Regional Trial Court of Manila (Branch
45), is based on a different law, that is, Republic Act No. 1700, as
amended. Section 3 thereof penalizes any person who knowingly, wilfully and
99
xxxxxxxxx
(h) That the accused has been previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged. (2a) (Emphasis ours)
In order that the protection against double jeopardy may inure to the
benefit of an accused, the following requisites must have obtained in
the first criminal action: (a) a valid complaint or information; (b) a competent
court; (c) the defendant had pleaded to the charge; [24] and (d) the defendant
was acquitted, or convicted, or the case against him was dismissed or
otherwise terminated without his express consent. [25]
It is clear from the foregoing, that the assailed decision of the Court of
Appeals is not in accordance with the law and jurisprudence and thus should be
reversed.
While we hold that both the subversion charge under R.A. No. 1700, as
amended, and the one for illegal possession of firearm and ammunition in
furtherance of subversion under P.D. No. 1866, as amended, can co-exist,
the subsequent enactment of Republic Act No. 7636 on September 22,
1992, totally repealing R.A. No. 1700, as amended, has substantially changed
the complexion of the present case, inasmuch as the said repealing law being
favorable to the accused-private respondent, who is not a habitual delinquent,
should be given retroactive effect.[26]
x x x x x x x x x.
The right of an accused against double jeopardy is a matter which he may
raise in a motion to quash to defeat a subsequent prosecution for
the same offense. The pertinent provision of Rule 117 of the Revised Rules of
Court provides:
SEC. 3. Grounds. The accused may move to quash the complaint or information
on any of the following grounds:
Although this legal effect of R.A. No. 7636 on private-respondents case has
never been raised as an issue by the parties obviously because the said law
came out only several months after the questioned decision of the Court of
Appeals was promulgated and while the present petition is pending with this
Court we should nonetheless fulfill our duty as a court of justice by applying the
law to whomsoever is benefited by it regardless of whether or not the accused
or any party has sought the application of the beneficent provisions of the
repealing law.[27]
That R.A. No. 7636 should apply retroactively to accused-private
respondent is beyond question. The repeal by said law of R.A. No. 1700, as
100
amended, was categorical, definite and absolute. There was no saving clause in
the repeal. The legislative intent of totally abrogating the old anti-subversion
law is clear. Thus, it would be illogical for the trial courts to try and sentence
the accused-private respondent for an offense that no longer exists. [28]
WHEREFORE, the assailed decision of the Court of Appeals dated May 27,
1991, in CA-G.R. SP No. 24273, including the orders dated October 12, 1990
and December 28, 1990 of the Regional Trial Court of Makati (Branch 148),
National Capital Region, in Criminal Case No. 1789, are hereby REVERSED and
SET ASIDE.
With the enactment of R.A. No. 7636, the charge of subversion against the
accused-private respondent has no more legal basis and should be dismissed.
SO ORDERED.
M.a
Calvo
for
appellant.
STATEMENT
February 4, 1916, the Legislature of the Philippine Islands passed Act No. 2612,
known as the charter of the Philippine National Bank, under which it was
organized with plenary powers and a capital stock of P20,000,000 divided into
200,000 shares of the par value of P100 each, 101,000 of which to be
101
subscribed, owned and held by the Government, and the remainder by private
persons.
Section 37 provides:
The National Bank shall never at any time, under any circumstances,
directly or indirectly grant to any individual, company of individuals,
firm, corporation, Insular, provincial or municipal government any real
estate mortgage loan exceeding the sum of fifty thousand pesos, or
any other loan exceeding the sum of three hundred thousand pesos.
Any person who shall violate any of the provisions of this Act shall be
punished by a fine not to exceed ten thousand pesos, or by
imprisonment not to exceed five years, or by both such fine and
imprisonment.
January 30, 1921, the Legislature passed Act No. 2938 entitled "An Act to
amend Act Numbered Twenty-six hundred and twelve, entitled 'An Act creating
the Philippine National Bank,' as amended by Act Numbered Twenty-seven
hundred and forty-seven."
It also provides:
Section 38 provides:
The National Bank shall not directly or indirectly grant loans to any of
the members of the board of directors of the bank nor to agents of the
branch banks. Said National Bank is hereby prohibited from making
any loan directly or indirectly in excess of one thousand pesos to any
member of the Philippine Legislature or to any official or employee of
the Insular, provincial, or municipal governments except upon
satisfactory real estate security.
Section 53:
Any person who shall violate any of the provisions of this Act shall be
punished by a fine not to exceed ten thousand pesos, or by
imprisonment not to exceed five years, or by both such fine and
imprisonment.
February 20, 1918, the Legislature passed Act No. 2747, entitled "An Act to
amend in certain particulars Act Numbered Twenty-six hundred and twelve,
entitled 'An Act creating the Philippine National Bank,' which provides:"
In order to explain certain provisions, increase the stability of the
institution, and extend its powers, Act Numbered Twenty-six hundred
and twelve, entitled "An Act creating the Philippine National Bank," is
hereby amended in certain particulars, so that hereafter the said Act
shall read as follows:
Section 35 of which provides:
The National Bank shall not, directly or indirectly, grant loans to any of
the members of the board of directors of the bank nor to agents of the
branch banks.
Section 49:
Act Numbered Twenty-six hundred and twelve, entitled "An Act creating
the Philippine National Bank, as amended by Act Numbered Twentyseven hundred and forty-seven, is hereby amended in certain
particulars, so that hereafter the said Act shall read as follows:
The National Bank shall not, directly or indirectly, grant loans to any of
the members of the board of directors, the general manager, assistant
general manager, and employees of the bank, nor to agents or
employees of the branch banks, and no loan shall be granted to a
corporation, partnership or company wherein any member of the board
of directors is a shareholder, agent or employee in any manner, except
by the unanimous vote of the members of the board, excluding the
member interested: Provided, That the total liabilities to the Bank of
any corporation wherein any of the members of the board of directors
is a shareholder, agent or employee in any manner, shall at no time
exceed ten per centum of the surplus and paid-up capital of the Bank.
All Acts or parts of Acts inconsistent or incompatible with the provisions
of this Act are hereby repealed.
Section 43:
Any member of the board of directors of the National Bank who
knowingly violates or knowingly permits any of the officers, agents, or
servants of the Bank to violate any of the provisions of this Act, and
any officer, employee, agent, or servant of the Bank who violates any
of the provisions of this Act and any person aiding and abetting the
violations of any of the provisions of this Act, shall be punished by a
fine not to exceed ten thousand pesos or by imprisonment not to
exceed five years or by both such fine and imprisonment.
At all of the material times hereinafter stated, the defendant, Venancio
Concepcion, was the duly elected, qualified and acting President of the
Philippine National Bank, which was organized and continued to exist under the
respective legislative acts.
102
June, 1918, what is known in the record as the Binalbagan Estate, Inc., was
organized by the agriculturists in the provinces of Occidental Negros and Iloilo,
with a capital stock of P10,000. Its primary purpose was to foster the
manufacture and refinement of centrifugal sugar and its by-products. Only
P2,500 of the capital stock was paid, and, for a long time, little, if anything, was
done. In 1920 its corporate interests were acquired by Phil. C. Whitaker and the
defendant, who reorganized the company with a capital stock of P500,000
divided into 5,000 shares of the par value of P100 each, out of which Whitaker
was issued a certificate for 1,865 shares and the defendant 1,615 shares, and
the firm of Puno, Concepcion and Co. a certificate for 250 shares, and the
remainder to other and different persons. In the month of November, 1910, the
capital stock was increased to P1,500,000, and 6,053 shares of stock were
issued to the defendant, portions of which he transferred to other persons,
among whom were his immediate relatives. Notwithstanding the fact that the
original capital stock was for P10,000, and that it was increased to P500,000
and again to P1,500,000, there is no registered document in the Bureau of
Commerce and Industry in either case showing the increase of the capital stock
of the estate.
January 30, 1920, Whitaker, Luzuriaga, and the defendant entered into an
agreement as partners to acquire and operate what is known as the "Palma"
sugar central and hacienda in the municipality of Ilog, Occidental Negros, a
short distance from the property of the Binalbagan Estate. Under this
agreement, Whitaker and the defendant were to each have 40 per cent and
Luzuriaga 20 per cent. Concurrent therewith, the three entered into another
agreement with Salvador Serra for the sale and purchase of his business known
as central and hacienda "Palma" at an agreed price of P1,500,000, P150,000 of
which was to be paid on or before June 30, 1920, when the property was to be
actually conveyed, and to assume a mortgage on the property for P600,000,
the remainder to be paid in three installments of P250,000 each, respectively,
on or before June 30, 1921, 1922, and 1923. January 29, 1920, this contract
was duly signed by all of the respective parties, and was duly witnessed and
acknowledged before a notary public.
On January 10, 1919, Salvador Serra executed a mortgage upon all of this
property in favor of the Philippine National Bank for P600,000, which was then
owned and held by the bank, and in full force and effect.
On July 17, 1920, in the office of the Philippine National Bank and in the
presence of the defendant and Whitaker, and in accord with the terms and
provisions of the instrument of January 29, 1920, Salvador Serra made,
executed and delivered a deed of conveyance of the property described in the
contract of January 29, 1920, and at the same time and place, and as a part of
the transaction, Whitaker delivered to Salvador Serra the check of the
Binalbagan Estate drawn upon the Philippine National Bank for P750,000, which
was honored and paid by the bank, and out of which it satisfied the mortgage,
which it then held on the "Palma" hacienda, for P600,000 with accrued interest
amounting to P26,218.66, and gave Salvador Serra credit in his current account
in its branch at Iloilo for P123,781.34, making a total of P750,000, which the
defendant and his associates had agreed to pay under the contract of January
29, 1920, thus consummating the deal.
On July 17, 1920, the Binalbagan Estate was indebted to the Philippine National
Bank more than P3,000,000, and did not have the money with which to pay the
check of P750,000. To provide the necessary funds, it executed its promissory
note payable on sight for that amount to the Philippine National Bank, which
was presented to Vicente Gaskell, then in charge of loans and discounts, who in
turn presented the note to the defendant for his approval, and the defendant
then and there approved the loan to the estate, and initialed the note "V. C."
which was his customary and usual method of approving loans, and after the
defendant approved the loan, the check of the Binalbagan Estate for P750,000
was honored by the bank, and the account of the Binalbagan Estate was then
credited with the amount of P750,000.
In his weekly report of July 22, it appears that Gaskell made a report of the
P750,000 loan to the Binalbagan Estate, but that no specific mention was made
of the loan by the defendant in his report, and that no record of the loan was
made in the corporate minutes of the Board of Directors as of July 23, 1920.
By the provisions of Act No. 2938, the capital stock of the bank was increased
from P20,000,000 to P50,000,000.
Following an investigation, an information was filed in the Court of First Instance
against the defendant, which was later amended, charging him, as President of
the Bank, with a violation of the provisions of section 35 as it relates to section
49 of Act No. 2747 of the Philippine Legislature above quoted. In substance,
and to the effect that, through the commission of such acts and in the making
of the loan of P750,000 to the Binalbagan Estate, the defendant was guilty of a
violation of section 35, and should be punished under section 49 of Act No.
2747. Upon this charge, he was arraigned, tried, convicted and sentenced to
two years of imprisonment and to pay a fine of P5,000 and costs, from which
the defendant appeals and assigns the following errors:
I. The trial court erred in overruling the demurrer interposed by the defense on
the ground that the facts alleged in the complaint do not constitute a violation
of Act No. 2747.
II. The trial court likewise erred in overruling the motion for dismissal,
interposed by the defense, on the ground that the prosecution has not proved
the essential facts alleged in the complaint.
III. The trial court likewise erred in not ordering the striking out of the hearsay
testimony of the witnesses for the prosecution, notwithstanding the petition of
the defense, as well as in permitting the fiscal to ask leading questions on
incompetent, immaterial and irrelevant facts, to the witnesses for the
prosecution, and the latter to answer said questions which were objected to by
the defense.
IV. The court likewise erred in admitting as proof Exhibits B, C, D, E, F, F-1, G, H,
K, L, P, V-15, X, Y, Y-1, AA, BB, CC, DD, FF, GG, GG-1, HH, HH-1 to HH-12, JJ, JJ-1,
and JJ-2 of the prosecution, notwithstanding that they were objected to by the
103
defense as being incompetent, irrelevant, and immaterial, for they are not the
best proof and not having been duly authenticated.
loan granted on said date and not on the date on which the credit contract was
perfected.
V. The trial court likewise erred in declaring that about the first months of the
year, 1920, a great portion of the interests of the Binalbagan Estate, Inc., was
acquired by Phil. C. Whitaker and the accused, V. Concepcion.
XV. The lower court lastly erred in finding the accused guilty of the violation
with which he is charged in the complaint, sentencing him to two years of
imprisonment, and to pay a fine of P5,000 and costs of the action.
VI. The lower court likewise erred in declaring that the firm of Puno, Concepcion
and Co., Ltd., is exclusively composed of the accused and the members of his
family.
VII. The lower court also erred in declaring that the writing executed on January
29, 1920, by Salvador Serran, the owner of the hacienda and the central
"Palma" in favor of Whitaker, Concepcion, and Luzuriaga was an option and not
a purchase and sale.
JOHNS, J.:
IX. The lower court likewise erred in declaring that the limit of the credit allowed
by the National Bank to the Binalbagan Estates, Inc., in the week which
terminated on the 22d of July, 1920, was P3,660,000.
There is a clear and correct analysis of the facts in the exhaustive opinion of the
trial court, and there is but little, if any, dispute about any of the material facts.
The testimony is conclusive that the defendant either owned or controlled
about 40 per cent of the capital stock of the Binalbagan Estate, which, at the
time of the above transaction, was indebted to the Philippine National Bank
more than P3,000,000. That the bank then owned and held a first mortgage lien
upon the "Palma" property for P600,000, which it satisfied and discharged out
of the proceeds of the check of Binalbagan Estate for P750,00. That is to say, as
a result of the transaction, the bank satisfied its mortgage lien for P600,000
with accrued interest, and in lieu thereof took and accepted the unsecured
promissory note of Binalbagan Estate for P750,000, and, including the amount
of that note, the total indebtedness to the bank then amounted to
P3,952,672.77.
X. The lower court likewise erred in declaring that the Binalbagan Estate, Inc.,
had been obtaining credits from the Philippine National Bank for various
amounts, against which it was obtaining loans for amounts which at times were
included in the total sum of the credit allowed, and at times exceeded the limit
of said credit.
The testimony is also conclusive that the P750,00 loan was personally approved
by the defendant, and was made upon his personal responsibility, and that, so
far as it appears in the record, no other officer or director was ever consulted
about the transaction or the making of the loan at any time prior to its
consummation.
XI. The lower court likewise erred in not declaring that the concession by the
Philippine National Bank to the Binalbagan Estate, Inc., of P750,000 on July 17,
1920, has been made with the unanimous consent of the members of the Board
of Directors of the bank.
The testimony is also conclusive that on the very day that the note was
presented to the bank by the Binalbagan Estate, the loan was consummated,
and the amount of it was placed to the credit of the Binalbagan Estate, which in
turn drew its check for the full amount of the loan, which was honored by the
bank when presented.
XII. The lower court likewise erred in declaring contrary to section 10 of Act No.
2612, as amended by Act No. 2938, that the obligations contracted with the
National Bank by virtue of the discount of negotiable papers, bills of exchange,
and promissory notes, are loans.
In this connection, it will be noted that the capital stock of the bank was then
P20,000,00, and the total amount of the indebtedness of Binalbagan Estate to
the bank was P3,952,672.77.
VII. The lower court likewise erred in declaring that at the time in which the
Binalbagan Estate, Inc., drew the check for P750,000 in favor of Salvador
Serran, the same had obtained from the National Bank, under the signature
and authorization of its president, the accused herein, several credits,
overdrafts and loans, which amounted to several millions of pesos.
XIII. The lower court also erred in declaring that the opinion of the Insular
Auditor, the ex-officio Auditor of the Bank, cannot in any manner serve as a
standard of conduct for the officers of the bank.
XIV. The lower court likewise erred in declaring that the sum of P750,000 given
to the Binalbagan Estate, Inc., by the National Bank on July 17, 1920, was a
104
Section 37 of Act No. 2612, above quoted, limits the amount of any real estate
mortgage loan to P50,000 or any other loan to P300,000. There is no such
limitation in Act No. 2747, and in so far as it is material to this opinion, section
38 of Act No. 2612 is identical with section 35 of Act No. 2747.
he was a member, and that it was done through the direction, permission,
advice, and procurement of the defendant.
Defendant's counsel ably and adroitly contend that the limitation provided for
in the act is upon the bank itself, and that it does not apply to the defendant, as
President of the Bank.
We are of opinion the statute forbade the loan to his copartnership firm
as well as to himself directly. The loan was made indirectly to him
through his firm. . . .
An appeal was taken, and the lower court was affirmed in (206 N. Y. 373), and
the case is reported in 11 Am. Ann. Cases, p. 243, in which the syllabus says:
Any person who shall violate any of the provisions of this Act shall be
punished by a fine not to exceed ten thousand pesos, or by
imprisonment not to exceed five years, or by both such fine and
imprisonment.
The limitation in Section 35 of Act No. 2747 says:
The National Bank shall not, directly or indirectly, grant loans to any of
the members of the board of directors of the bank not to agents of the
branch banks.
And section 53 of Act No. 2612 says:
Any person who shall violate any of the provisions of this Act, etc.," and
provides for a fine or imprisonment or both, and it must be conceded
that the bank itself could not be imprisoned for a violation of section
35.
It is very apparent that section 35 was intended to prohibit the making of any
loan by the bank to an officer or director of the bank.
It is also claimed that the loan to the defendant within the meaning of section
35. He was the President and active Manager of the Bank, and was the owner
and had under his control about 40 per cent of the capital stock of the
Binalbagan Estate, which was also a corporation, which was then indebted to
the bank more than 15 per cent of the capital stock of the bank. With P750,000
loan, its idebtedness to the bank amounted to very little less than 20 per cent
of the capital stock of the bank.
Upon that question, the case of People vs. Knapp (132 N.Y. Supp., 747), is
square in point. There, third count of the indictment charged the defendant with
violating subdivision 11 of section 186 of the banking law in the making of a
loan to him as director by a loaning of the money to the copartnership of which
105
The only difference as to the facts is that, there, the money was loaned to a
copartnership of which the defendant was a member, and, here it is loaned to a
corporation of which the defendant was one of the heaviest stockholders. Here,
good faith on the part of the defendant and sound banking would not permit
the personal satisfaction by him, as President of the Bank, of a first mortgage
loan of P600,000, and the taking in lieu thereof, and as a substitute therefor, of
the unsecured promissory note of the Binalbagan Estate in which he owned and
controlled at least 40 per cent of its capital stock and it is very apparent that
the defendant would never have authorized the loan of P750,000, or satisfied
the mortgage of P600,000, if he had not been a heavy stockholder in the
Binalbagan Estate. The fact that he was such a stockholder was one of the main
inducements and the primary consideration for his approval of the transaction.
It will be noted that section 35 of Act No. 2747 does not contain any exception
or proviso, and that section 29 of Act No. 2938, which was enacted in 1921,
says:
The National Bank shall not, directly or indirectly, grant loans to any of
the members of the board of directors, the general manager, assistant
general manager, and employees of the Bank, nor to agents or
employees of the branch banks, and no loan shall be granted to a
corporation, partnership or company wherein any member of the board
of directors is a shareholder, agent or employee in any manner, except
by the unanimous vote of the members of the board, excluding the
member interested: Provided, That the total liabilities to the Bank of
any corporation wherein any of the members of other board of
directors is a shareholder, agent or employee in any manner, shall at
no time exceed ten per centum of the surplus and paid-up capital of
the bank.
This section was enacted in 1921, and section 35 above quoted was enacted in
1918, and section 42 of Act No. 2938 expressly provides that:
All Acts or parts of Acts inconsistent or incompatible with the provisions
of this Act are hereby repealed.
Defendant's counsel vigorously contend that the P750,000 loan to Banalbagan
Estate was reported to, and approved by, the Board of Directors; that section
35 of Act No. 2747 was repealed, and that section 29 of Act No. 2939 is the law
under which the defendant should be prosecuted.
Construing section 29, the record here is conclusive that the defendant, acting
and representing the bank, personally made and consummated the loan, and
that upon his personal advice and instructions, the check was paid, and that
personally, as President, he satisfied the mortgage for P600,000. He not only
authorized the making of the loan, but made the loan himself without the
consent or the authority of the Board of Directors, and the loan was
consummated, and the bank parted with the money without the knowledge of
the Board of Directors. It was a completed transaction. There is a marked
difference between the authority of the president of the bank to promise or
negotiate a loan and the making of the loan itself.
Section 29 of Act No. 2938 contemplates that no loan shall ever be made to any
officer o the bank until such time as it is submitted to, and approved by, the
unanimous vote of the Board of Directors, excluding the applicant for the loan.
But, here, the loan was consummated and the transaction was completed
several days before it was ever brought to the knowledge or attention of the
directors, and, even assuming that they did ratify a loan of that character, it
would not constitute a defense. The law was violated in the making and
consummation of the loan without the knowledge or consent of the Board of
Directors. If the Binalbagan Estate had applied to the defendant, as President of
the Bank, for the loan in question, and if, upon its receipt, he had submitted the
application to the Board of Directors recommending the loan, and acting upon
his advice the Board had approved the loan, and the loan had been made after
such approval by the board, another and different question would have been
presented, and there would have been merit in such a defense, but that is not
this case.
Even under section 29, the consent and approval of the Board of Directors was
a condition precedent to the making of the loan in question, and the fact that
the Board of Directors a few days after the offense was committed may have
approved it would not be a defense to the commission of the crime. In other
words, assuming that the Board of Directors did approve of a violation of the
law, it would not aid the defendant. He was occupying a position of special trust
and confidence, and was the president and head of the most important
financial institution in the whole Philippine Islands. His powers and duties were
defined and described in the corporate charter of the bank. It was organized
under a special act, and the Government itself subscribed for, and was the
owner of, the majority of its capital stock. It was the purpose and intent to
make it a conservative, strong and safe bank, and numerous provisions were
made in the Act for its safety an stability, among which was section 35 of Act
No. 2747.
Here, you have the President of the Bank upon his own initiative and his sole
approval authorizing, making and perfecting a loan of P750,000 to a
corporation in which he owned and controlled 40 per cent of its capital stock. It
was never the purpose or intent of the corporate charter that any officer of the
bank should have, assume or exercise any such arbitrary or autocratic power.
106
It is worthy of note that the material provisions of the law prohibiting a loan to
an officer of the bank are almost identical in each legislative act. Also, that the
punishment for a violation is the same in each Act.
Hence, we must assume that at all times, it was the purpose and intent of the
Legislature that no loan should ever be made by the bank to any officer or
director, except under the express provisions of the law.
The loan was maid while Act No. 2747 was in force and effect and before the
passage of Act No. 2938, and appellant's counsel vigorously contend that Act
No. 2747 was repealed by Act No. 2938, and appellant's counsel vigorously
contend that Act No. 2747 was repealed by Act No. 2938, and that the repeal of
the one and the enactment of the other operated as a release and discharge of
all crime which were committed prior to the passage of Act No. 2938. In other
words, that the Act of the Legislature released the defendant of any crime
which he may have committed prior to January, 1921.
We do not believe that it was ever the purpose or intention of the Legislature to
release anyone from a crime committed under either one of the Acts, and, in
particular, as to the offense described in the information. As stated upon the
question here involved, each one of the legislative acts expressly prohibits the
bank from loaning any of its money to an officer or director, and the only
difference is found in the latter portion of section 29 of Act No. 2938, which,
upon the undisputed facts, is not material to the question involved here.
Section 42 of Act No. 2938 says:
All Acts or parts of Acts inconsistent or incompatible with the
provisions of this Act are hereby repealed.
Upon the disputed facts, there is nothing inconsistent or incompatible with
either section 37 of Act No. 2612, or section 35 of Act No. 2747, as construed
with section 29 of Act No. 2938. Each section expressly prohibits the making of
a loan by the Bank to an officer, and the only difference is the proviso in section
29, which does not apply to the facts here. There is nothing in section 37 or in
section 35 which is inconsistent or incompatible with section 29. Each of them
was intended to prohibit the Bank from loaning money to an officer of the bank.
Much stress is laid upon article 22 of the Penal Code, which says:
Penal laws shall have a retroactive effect in so far as they favor the
person guilty of a felony or misdemeanor, although at the time of the
publication of such laws a final sentence has been pronounced and the
convict is serving same.
For the reason that the bank here was incorporated under a special Act, that
article should be construed as it relates to article 7, which says:
107
business, but little attention was paid to the provisions of those sections. The
Auditor was not the legal adviser of the Bank.
Section 25 of the original act expressly provides that:
The Attorney-General of the Philippine Islands shall be attorney for said
National Bank: Provided, however, That the Board of Directors of said
bank shall have power to employ other attorneys in special cases.
Hence, it must follow that the Attorney-General was the legal adviser of the
bank, and there is nothing to show that he was ever requested to, or that he
ever did, render a legal opinion upon the construction which should be placed
upon sections 37 and 38 of Act No. 2612. But giving the Auditor's opinion its
broadest construction, it would not justify the commission by the defendant of
the acts shown in the record. It might tend to mitigate, but it would not legalize
the offense.
The record further shows that on September 15, 1916, Mr. Ferguson, as Acting
President of the Bank, addressed a letter to Mr. Dexter, as Acting Insular
Auditor, in which he says:
We can readily see where loans directly made to Directors would be
very harmful, and it is a wise provision in the Act which makes this
impossible, but there is a wide difference between loaning money to a
Director, and discounting the single name paper or Bills receivable of a
business house, with whom such a Director might be interested.
The whole tenor of the letter clearly reveals that the defendant realized and
was very uneasy about the condition of the bank, and yet seventeen days
before that letter was written, he personally made an unsecured loan to the
Binalbagan Estate for P750,000, because of the very apparent reason that he
was one of its heaviest stockholders.
We have given this case the careful consideration which its importance
demands, and have examined each of the numerous assignments of error.
Defendant's case was skillfully presented in an exhaustive brief by able
counsel, but in the final analysis, the stubborn, undisputed fact remains that
the defendant did personally make a large unsecured loan to a corporation in
which he was one of its heaviest stockholders, and that the loan was
consummated and the money paid over without the knowledge of the Board of
Directors, and that it was made to the prejudice and injury of the bank, and to
further and promote his own personal interests, and that, as President of the
Bank, he personally released the mortgage of the bank upon the property
which his corporation acquired through the deal, and that upon the undisputed
facts, it was done in violation not only of section 35 of Act No. 2747, but also of
section 38 of Act No. 2612, and of section 29 of Act No. 2938.
Criticism is made of the penal clause, and its validity is attacked. It will be
noted that it is the same in each act, and that a large discretion is given to the
trial court, varying from a minimum fine to P10,000, or imprisonment not to
exceed five years, or both fine and imprisonment. Its purpose was to prohibit a
violation of any provision of the bank's charter, and to make the penalty
correspond to the gravity of the offense, and that question was left to the
discretion of the court.
As we have pointed out, the transaction here was a loan and not a discount.
The judgement of the lower court is affirmed, with costs. So ordered.
Again, any mitigation of the offense is more than offset by the subsequent
conduct of the defendant.
August 3, 1920, the defendant wrote a letter to the Governor-General in which
he complains of official treatment, and clearly points out the serious financial
condition of the Bank, in which, among other things, he says:
If this Bank is compelled to adopt drastic measures as to the liquidation
of its loans we would be placed in the position of having to shirk the
responsibility for any serious consequences that may arise, and to
point to the Department of Finance for insisting on such a policy.
The policy of contraction which is now in force in the operations of
the Bank and with the party payments on our loans to sugar central,
our cash reserve will be up to the requirements next year aside from
our ability to replenish our cash reserve in substantial amounts.
108
AQUINO, J.:
Bernabe Buscayno alias Commander Dante and Jose Ma. Sison alias Amado
Guerrero, alleged subversives classified as "PKP/HMB/CPP/MAMAO and
Traditional Armed Group personalities", were wanted by the authorities since
1971.
In Department Order No. 610 Undersecretary of National Defense Efren I. Plana
fixed P150,000 and P50,000 as the prizes to be paid to any person who kills,
captures or causes the killing, capture or surrender of Buscayno and Sison,
respectively, or who furnishes information directly leading to and which is the
proximate result of their killing or capture. (p. 96, Rollo of L-47185.)
Buscayno and Sison were included in the so-called "National Target List" of
active participants in the conspiracy to seize political and state power and to
take over the government by force whose arrest was ordered under 'General
Order No. 2 dated September 22, 1972. The list was prepared by Colonel
Hamilton B. Dimaya. (p. 95, Rollo of L-47185.)
Buscayno's case Even before Buscayno's arrest, he and Benigno S. Aquino, Jr.
(arrested on September 23, 1972) were charged before Military Commission No.
2 in an amended charge sheet dated August 14, 1973 with subversion or
violation of the Anti-Subversion Law, Republic Act No. 1700.
It was alleged that as ranking leaders of the Communist Party of the Philippines
and its military arms, the Hukbong Mapagpalaya ng Bayan and the New
People's Army, constituting an organized conspiracy to overthrow the
government by force or placing it under the control of an alien power, they
committed the following acts (Criminal Case No. MC-223, pp. 71-75, Rollo of L47185):
1. In April 1969, Aquino at 25 Times Street, Quezon City gave
P15,000 to the said organizations for the purpose of staging an
NPA-sponsored demonstration in Manila which was in fact
carried out in Congress, Malacaang and the American
Embassy on April 19, 1969 to achieve the objectives of the
said organizations.
2. Aquino in 1967 gave to Buscayno in Concepcion, Tarlac a .
45 caliber pistol with magazine and ammunition to be used
against the government.
109
vessel, to procure firearms and ammunition for the CPP and NPA as in fact war
materials and armanents were landed at Digoyo Point, Palanan, Isabela on July
2, 1972 from Communist China and were used against the army.
The second specification in Criminal Case No. MC-1-92 is that Buscayno, Sison
and others during the period from August, 1973 to February, 1974 committed
rebellion in Manila, Baguio, La Union, Pangasinan, Bulacan and elsewhere in the
Philippines by acquiring, purchasing and operating vessels, motor vehicles,
beach houses, lots and other real and personal properties for use in distributing
firearms and ammunition for the CPP and NPA to be utilized in resisting the
army and overthrowing the government. (pp. 78-91, Rollo of L-47185.)
The said case was refiled in Special Military Commission No. 1 as Criminal Case
No. SMC-1-1 with an amended charge sheet dated November 8, 1977 (pp. 189205, Rollo of G.R. No. 58284).
Buscayno was arrested on August 26. 1976 in Barrio Sto. Rosario, Mexico,
Pampanga by operatives of the armed forces. He was detained in the
Constabulary Security Unit at Camp Crame. When the trial counsel informed
Buscayno that his presence at the hearing on September 15, 1976 before
Military Commission No. 2 was necessary, Buscayno in a letter dated
September 7, 1976 addressed to the President of the Commission declared that
he had no intention of appearing before the tribunal; that he did not need a
lawyer; that he would not contest the tribunal's jurisdiction and that any
reference by the prosecution witnesses to Buscayno alias Commander Dante
would be to him and to no other person.
At Buscayno's arraignment in the subversion and murder cases, he waived his
right to be present and to have counsel. He said that he was not challenging
any member of the tribunal. He just wanted to have a record of the trial. He
pleaded not guilty. After the prosecution had finished the presentation of its
evidence, Buscayno was asked whether he wanted to present evidence. He
answered in writing that he did not want to present evidence.
On July 18, 1977, Juan T. David entered his appearance as counsel for Buscayno
in Criminal Case No. MC-2-23 for subversion. On October 25, 1977, lawyer
David filed in this Court in behalf of Buscayno a petition for habeas corpus and
prohibition.
As no restraining order was issued, the Commission continued its proceeding
against Buscayno and Aquino. On November 25, 1977, after Buscayno failed to
present any evidence in spite of having been given another chance to do so, his
case was deemed submitted for decision. After deliberation, the Commission
found all the accused guilty as charged and imposed death by firing squad. The
110
with rebellion on two counts before Special Military Commission No. 1 as shown
in the amended charge sheet dated November 8,1977.
Even before her arrest, Juliet Sison, with fifty-five other persons including Victor
Corpus, was charged with subversion before Military Commission No. 6 (Case
No. 55), as shown in the charge sheet dated November 16, 1972.
It was alleged therein that the fifty-six accused, in 1968 and for sometime prior
and subsequent thereto, became and have remained officers and ranking
leaders of the CPP and the NPA, the CPP's military arm, and the CPP's front
organizations such as the Kabataang Makabayan (KM), Samahang
Demokratikong Kabataan (SDK), Malayang Samahan ng Magsasaka (MASAKA),
Student Alliance for National Democracy (STAND), Movement for Democratic
Philippines
(MDP) and Malayang Kilusan ng Bagong Kababaihan
(MAKIBAKA), whose objective is the overthrow of the government for the
purpose of establishing a totalitarian regime and placing the government under
the control and domination of an alien power.
It was specified that the accused engaged in extensive indoctrination, agitation
and promotion of rallies (ten instances) and in propagandas, speeches, teachins, messages, lectures, all intended to promote the communist pattern of
subversion (eleven instances).
The same charge sheet indicated that the accused rose publicly and took up
arms against the government, engaging in war against the forces of the
government and committing serious violence (eight instances).
Juliet Sison was pinpointed as a ranking leader of the Kabataang Makabayan
operating in the Bicol region, helping her husband Jose as KM chairman and
editing the periodical Ang Bayan in Isabela in 1971-72 (Annex 3 of Return).
Jose Ma. Sison, with Juanito Canlas, Cesario Diego, Saturnino Ocampo, Antonio
Liao, Mila Roque, Alfredo Granada, Ramon Isberto, Ester Ceniza and Evelyn
Sarmiento were charged with subversion under Presidential Decree No. 885
(which superseded Republic Act No. 1700) before Military Commission No. 25 in
Case No. 113 as shown in the charge sheet dated October 3, 1978.
It was alleged that the ten accused, in or about 1968 and for sometime prior
and subsequent thereto and continuously thereafter, in Capas, Tarlac and
elsewhere in the Philippines, wilfully organized and joined as officers and
ranking members of the CPP and the NPA for the purpose of overthrowing the
government through armed revolution, violence and subversion with the covert
assistance and support of a foreign power in order to establish therein a
totalitarian regime subject to alien control and domination (Annex 4 of Return).
In the rebellion case, Case No. SMC-1-1, the Sison spouses and the Buscayno
spouses assailed the jurisdiction of the military tribunal to try civilians like
them.
On January 3, 1979, the Sison spouses, together with the Buscayno spouses,
Peter Mutuc, Edgar Pilapil, Eduardo Lingat, Joaquin Rivera, Leonila Lumbang and
Juanito Canlas, filed in this Court a petition for habeas corpus, prohibition and
mandamus (L-49579).
That petition, like Buscayno's petition in L-47185, was dismissed in this Court's
decision dated January 15, 1981 (102 SCRA 33).
The instant case. On October 2, 1981, Buscayno and the Sison spouses filed
the instant omnibus catchall petition for habeas corpus, prohibition and
mandamus couched in repetitious, involuted and obfuscatory verbiage
They prayed that the decision of Military Commission No. 2 dated May -1. 1981,
convicting Buscayno of subversion and murder and sentencing him to death by
firing squad, be declared void because he was denied his constitutional right to
present evidence and that he be released from detention.
They also prayed that the charges of rebellion and subversion be dismissed for
being in contravention of the rule on double jeopardy, that Military
Commissions Nos. 1, 6 and 25 be enjoined from proceeding with the trial of the
petitioners and that the petitioners be released. They also prayed that they be
granted bail.
The petitioners also asked for the issuance of a temporary restraining order,
enjoining the three Commissions from trying the petitioners, enjoining Military
Commission No. 1 from continuing with the perpetuation of testimonies and
from requiring the petitioners to attend the perpetuation proceedings and
enjoining the Review Board-AFP from reviewing the decision in the subversion
and murder cases.
Habeas corpus and petitioners' release on bail. - This is Buscayno's third
petition for habeas corpus and the second petition of the Sison spouses. The
ultimate issue is whether they are legally detained. We find that they have not
been illegally deprived of their liberty and that there is no justification to order
their release.
Proclamation No. 2045 dated January 17, 1981, which terminated martial law,
sanctions the continued confinement of the petitioners. It provides (77 OG
441):
111
interlocutory rulings and decisions may be reviewed by this Court. (See Kuroda
vs. Jalandoni, 83 Phil. 171; Martelino vs. Alejandro, L-30894, March 25, 1970, 32
SCRA 106).
So, the issue as to whether Buscayno was denied his constitutional right to
present evidence should first be passed upon by the reviewing military
authority and not by this Court. The propriety of the perpetuation proceedings
in the rebellion case and the conduct of the trial in the Commission cannot at
this stage be passed upon by this Court.
We have definitively ruled that the petitioners can be tried by the military
commissions and that their cases are within the jurisdiction and competence of
military tribunals.
Nevertheless, two legal issues regarding double jeopardy and the alleged
repeal of the Anti-Subversion Law may be resolved in the interest of justice, to
dissipate any uncertainty and for the guidance of the parties.
Alleged repeal of the Anti-Subversion Law. Juliet de Lima Sison contends that
her criminal liability for subversion was extinguished when Presidential Decree
No. 885 (which took effect on May 11, 1976, 72 OG 3826) repealed Republic Act
No. 1700. This contention is bereft of merit.
That decree, which is the Revised Anti-Subversion Law, in repealing or
superseding Republic Act No. 1700, expressly provides in its section 7 that "acts
committed in violation" of the former law before the effectivity of the said
decree "shall be prosecuted and punished in accordance with the provisions of
the former Act" and that nothing in the said decree "shall prevent prosecution
of cases pending for violation of" Republic Act No. 1700. That saving or
transitory clause is reenacted in section 14(i) of the National Security Code.
It is similar to article 366 of the Revised Penal Code which provides that felonies
and misdemeanors committed prior to the effectivity of the Revised Penal Code
shall be punished in accordance with the old Penal Code and the laws in force
at the time of their commission.
The fact that Presidential Decree No. 885 does not mention the CPP does not
mean that that party is no longer regarded as a subversive organization. The
purpose of the party is the decisive factor in determining whether it is a
subversive organization.
The issue of double jeopardy. The petitioners invoke their constitutional right
not to be put twice in jeopardy of punishment for the same offense. As may be
112
gleaned from section 9, Rule 117 of the Rules of Court, "same offense" means
the offense charged, or an attempt to commit it or a frustrated stage thereof, or
"any offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information."
113
As already noted, Republic Act No. 1700 was superseded by Presidential Decree
No. 885 which reads as follows:
PRESIDENTIAL DECREE NO. 885
OUTLAWING
SUBVERSIVE
ORGANIZATIONS;
PENALIZING
MEMBERSHIP THEREIN AND FOR OTHER PURPOSES
Whereas, there are certain associations or organizations in the
Republic of the Philippines, not covered by Republic Act No.
1700, which are seeking to overthrow the Government of the
Republic of the Philippines or to dismember a portion thereof;
and
Whereas, in order to protect the Government of the Republic of
the Philippines and the people, it has become necessary to
revise Republic Act No. 1700 to broaden its coverage;
Now, therefore, I, Ferdinand E. Marcos, President of the
Philippines by virtue of the powers in me vested by the
Constitution, do hereby decree as follows:
Section 1. Short Title This decree shall be known as the
Revised Anti-Subversion Law.
Sec. 2. Subversive Associations and Organizations - Any
association, organization, political party, or group of persons
organized for the purpose of overthrowing the Government of
the Republic of the Philippines or for the purpose of removing
from the allegiance to said Government or its laws, the
territory of the Philippines or any part thereof, with the open or
covert assistance or support of a foreign power or the open or
covert support from a foreign source of any association, group
or person, whether public or private, by force, violence,
terrorism, arson, petition, deceit or other illegal shall be
considered and is hereby d a subversive organization. (As
114
115
committed overt acts as alleged communists or leftists. The overt acts in the
two charges are different.
Rebellion is an offense that has existed in the Penal Code for a long time. It may
be committed by non-communists without collaborating with the agents of an
alien power. In contrast, the crime of subversion came into existence when the
communists sought to dominate the world in order to establish a new social
economic and political order.
The constitutionality of the Anti-Subversion Law was upheld in People vs.
Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382 and 56 SCRA 793. Long
before the passage of the Anti-Subversion Law membership in illegal
associations has been penalized (Art. 146, Revised Penal Code).
A statute which punishes membership in a party or association that advocates
the overthrow or destruction of the government by force or violence is justified
on the ground of self-preservation (Dennis vs. U.S., 341 U.S. 494, 509; Scales
vs. U.S. 367 U.S. 203).
The unavoidable conclusion is that in the present posture of the pending cases
against the petitioners their plea of double jeopardy cannot be sustained.
WHEREFORE, the petition is dismissed. The restraining order is lifted. No costs.
SO ORDERED.
Barredo, Fernandez, Guerrero and De Castro, JJ., concur.
Makasiar, J., concur in the result.
It was held that there was no double jeopardy because Liwanag was convicted
of rebellion for acts committed before the Anti-Subversion Law took effect while
the subversion charge referred to his act of having remained an officer and
ranking leader of the CPP and HMB from the time the Anti-Subversion Law took
effect on June 20, 1957 up to his capture in 1960. Moreover. the crime of
subversion is distinct from rebellion.
In the instant case, the rebellion charge against the petitioners embraced the
acts committed by them on or about February 4, 1972 and during the period
from August, 1973 to February, 1974. The subversion charge against Buscayno
involved his acts committed in 1965, 1967, 1969, 1970 and 1971. The
subversion charge against the Sison spouses referred to their acts committed in
1968 and for sometime prior and subsequent thereto. The common
denominator of the rebellion and subversion charges is that the petitioners
Separate Opinions
116
Except as to the statement that "ordinarily, this Court cannot review the rulings
and proceedings of the military commission" (p. 11) in respect of which I
reserve my vote.
Abad Santos, J., concur.
FERNANDO, C.J., concurring and dissenting:
With regret and with due recognition that with the approach taken the
conclusion reached by the Court expressed with his usual clarity in the
able ponencia of justice Aquino was inevitable I find myself unable to agree
with my brethren on the question of the scope of our power of review over
military tribunals, especially so where the accused are civilians. Moreover, while
it is not inaccurate to state that the suspension of the privilege of the writ of
habeas corpus carries with it the suspension of the right to bail. 1 I am for a
reexamination of such a doctrine, Moreover, even if I did not succeed, it is my
submission that there may be a question of unconstitutional application of such
a principle if, notwithstanding the advanced stage of pregnancy of Mrs. Juliet
Sison, she is not released on bail.
I am led to concur in the result primarily on the concept of the law of the case,
the present petitioners having failed in their previous petitions to transfer their
cases to civilian tribunals. 2 I likewise concur with my brethren on the lack of
merit in the petition insofar as it contended that there was double jeopardy.
Also, while being the lone dissenter in People v. Ferrer, 3 where the validity of
the Anti-Subversion Act was challenged, I must perforce yield to the prevailing
doctrine that it is not unconstitutional.
Hence this separate concurring and dissenting opinion.
1. On the question of the power of this Court to review actuations of military
tribunals, I adhere to our decision in Go v. Gen. Olivas. 4 That petition for
habeas corpus was dismissed on the basic principle that no jurisdictional
question was raised by the person detained. Nonetheless, this Court made clear
what are the guiding principles to determine its jurisdiction whenever the
actuation of a military tribunal is challenged before it. Thus: "1. This Court
in Aquino v. Military Commission No. 2 ruled that there is no constitutional
objection to military tribunals conducting trials of civilians for certain specified
offenses, among which is kidnapping. That does not preclude the judiciary, of
course, from granting in appropriate cases applications for the return of habeas
corpus. There is, however, this limitation. The jurisdictional question must be
squarely raised. That is a doctrine implicit in the In re Carr 1902 decision, the
opinion being penned by Justice Willard. The leading case of Payomo v. Floyd, a
1922 decision, made it explicit. As set forth by its ponente, Justice Street: "The
next point to be observed upon it that, where the detained person is held in
restraint by virtue of a judgment rendered by a military or naval court, tribunal,
or officer, no court entertaining an application for the writ of habeas corpus has
authority to review the proceedings of that tribunal, court, or officer in the
sense of determining whether the judgment was erroneous. The only question
to be considered is whether the court, tribunal, or officer rendering the
judgment had jurisdiction to entertain the case and render judgment at all. As
was said by the Supreme Court of the United States in a case where the writ of
habeas corpus had been sued out to liberate a person detained by virtue of the
sentence of a court-martial, the civil courts exercise no supervisory or
correcting power by the writ of habeas corpus over the proceedings of a courtmartial and no mere errors in their proceedings are open to consideration. "The
single inquiry, the test, is jurisdiction. That being established, the habeas
corpus must be denied and the petitioner remanded. That wanting, it must be
sustained and the petitioner discharged." ... As otherwise stated the rule is that
the proceedings of a military or naval court cannot be reviewed upon habeas
corpus when it appears that such tribunal had jurisdiction over the offense
charged and that the offender was a person amenable to its authority." The first
Supreme Court decision after the Liberation in 1945, Cabiling v. Prison Officer,
reiterated such a doctrine. As set forth in the opinion of Chief Justice Moran: "It
is alleged in the petition for habeas corpus filed in his behalf that he is illegally
detained, the General Court-Martial having no jurisdiction to try and convict him
for the crime charged. ... [The only] question to be determined is whether or
not the General Court-Martial was vested with jurisdiction to try and convict the
petitioner for the crime of murder. There seems to be no doubt that it had such
jurisdiction. According to Article of War 12 "General Courts-Martial shall have
power to try any person subject to military law for any crime or offense made
punishable by these articles, ... " The petitioner, being a staff sergeant of the
Philippine Scouts, United States Army, is a person subject to military law, under
Article of War 2, and in time of war, the crime of murder committed by a person
subject to military law, comes within the jurisdiction of a court-martial, in
accordance with Article of War 92." 2. What minimizes the difficulty facing a
detained person, triable by a military tribunal, is this categorical
pronouncement by Justice Antonio, speaking for the Court, in the
aforesaid Aquino v. Militar00y Commission decision: "It is important to note
here that an accused being tried before a military tribunal enjoys the specific
constitutional safeguards pertaining to criminal trials. Thus, he is entitled to be
heard by himself and counsel to be informed of the nature and cause of the
accusation, to meet the witnesses face to face, to have compulsory process to
secure the attendance of witnesses and the production of evidence in his
behalf, and to be exempt from being a witness against himself. As in trial before
civil courts, the presumption of innocence can only be overcome by evidence
beyond reasonable doubt of the guilt of the accused. These tribunals, in
general, are "bound to observe the fundamental rules of law and principles of
justice observed and expounded by the civil judicature" ... There is, therefore,
117
118
With the official lifting of martial law under Proclamation No. 2045 and the
revocation thereunder of General Order No. 8 creating military tribunals, and
pursuant to the Court's abovequoted pronouncement in Sison on the phaseout
of military tribunals, there is no longer any justification for continuing to subject
petitioners-civilians to trial by military commissions in derogation of the judicial
power vested exclusively in the civil courts.
neither the respondents nor the State claim, much less have shown, that the
transfer of petitioners' cases to the civil courts would result in "irreparable
prejudice" to the State because of double jeopardy or that such transfer to the
civil courts would render further prosecution "difficult, if not impossible" in the
face of petitioners' assertion and insistence that the military tribunals have no
jurisdiction over them as civilians.
II. On the second question on the right of petitioners to bail, absent a showing
of strong evidence of guilt of the capital offense of subversion, notwithstanding
the saving. clause in Proclamation No. 2045 maintaining the suspension of the
privilege of the writ of habeas corpus as to them as persons detained for
rebellion and subversion, I reiterate my adherence to the majority holding in
the leading 1951 cases of Nava vs. Gatmaitan and Hernandez vs.
Montesa 7 (although it000 failed one vote short of the required majority of six
affirmative votes at the time ) as expounded by then Chief Justice Ricardo Paras
and Associate Justice (later Chief Justice) Cesar Bengzon and Associate Justices
Pedro Tuason, Alex Reyes and Fernando Jugo that after formal indictment in
court by the filing against them of an information charging rebellion with
multiple murder, etc., accused persons covered by the proclamation of
suspension of the privilege of the writ of habeas corpus are entitled to the right
to bail. As stressed by then Chief Justice Paras, "(T)he right to bail, along with
the right of an accused to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses in his behalf (Article III, Section 1,
Paragraph 17, of the Constitution), tends to aid the accused to prove his
innocence and obtain acquittal. If it be contended that the suspension of the
privilege of the writ of habeas corpus includes the suspension of the distinct
right to bail or to be provisionally at liberty, it would a fortiori imply the
suspension of all his other rights (even the rights to be tried by a court) that
may win for him ultimate acquittal and, hence, absolute freedom. The latter
result is not insisted upon for being patently untenable."
As was held in a leading U.S. Supreme Court case, 5 "the assertion of military
authority over civilians [discharged servicemen] cannot rest on the President's
power as Commander-in-Chief or on any theory of martial law." The late Justice
Hugo Black speaking for that Court aptly pointed out that "the presiding officer
at a court martial [or military commission] is not a judge whose objectivity and
independence are protected by tenure and undiminished salary and nurtured
by the judicial tradition, but is a military law officer. Substantially different rules
of evidence and procedure apply in military trials. Apart from these differences,
the suggestion of the possibility of influence on the actions of the court-martial
by the officer who convenes it, selects its members and the counsel on both
sides, and who usually has direct command authority over its members is a
pervasive one in military law, despite strenuous efforts to eliminate the
danger," and "(A) Court-Martial is not yet an independent instrument of justice
but remains to a significant degree a specialized part of the over-all mechanism
by which military discipline is preserved," and ex-servicemen should be given
"the benefits of a civilian court trial when they are actually civilians. ... Free
countries of the world have tried to restrict military tribunals to the narrowest
jurisdiction deemed absolutely essential to maintaining discipline among troops
in active service."
Finally, it should be noted that there has been no showing by respondents that
the cases against petitioners fall within the only exception provided in
Proclamation No. 2045 6 wherein the military tribunals which are therein
dissolvedmay make a "final determination " to wit, "cases pending therein
which may not be transferred to the civil courts without irreparable prejudice to
the State in view of rules on double jeopardy, or other circumstances which
render further prosecution of the cases difficult, if not impossible." Certainly,
119
so-called
"judicial
statesmanship."
The
Legislature itself cannot infringe them, and no
court
conscious
of
its
responsibilities
limitations would do so. If the Bill of Rights are
incompatible with stable government and a
menace to the Nation, let the Constitution be
amended, or abolished. It is trite to say that,
while the Constitution stands, the courts of
justice as the repository of civil liberty are
bound to protect and maintain undiluted
individual rights.
From Justice Bengzon, . . . .
120
commission" or at best limit such review "to decisions of the Court of Military
Appeals 10 in cases appealed to it from the military commission." It must first be
noted that these statements do not carry the affirmance of a majority of the
Court that would unsettle or overthrow this Courts consistent exercise of its
judicial power and jurisdiction through the prerogative writs of certiorari and
prohibition or habeas corpus over cases, including military commissions (in
whatever stage of the proceedings), where a violation or denial of constitutional
rights is asserted by the aggrieved party, although not always with successful
results. In this very case, the Court did again exercise, with the required
concurrence of at least eight (8) members, its jurisdiction over proceedings in
the military commissions per its Resolution of October 22, 1981 through the
issuance of a temporary restraining order enjoining respondent military
commissions "from proceeding with the trial of petitioners ... until otherwise
ordered by the Court."
Separate Opinions
MELENCIO-HERRERA, J., concurring:
Except as to the statement that "ordinarily, this Court cannot review the rulings
and proceedings of the military commission" (p. 11) in respect of which I
reserve my vote.
Abad Santos, J., concur.
FERNANDO, C.J., concurring and dissenting:
With regret and with due recognition that with the approach taken the
conclusion reached by the Court expressed with his usual clarity in the
able ponencia of justice Aquino was inevitable I find myself unable to agree
with my brethren on the question of the scope of our power of review over
military tribunals, especially so where the accused are civilians. Moreover, while
it is not inaccurate to state that the suspension of the privilege of the writ of
habeas corpus carries with it the suspension of the right to bail. 1 I am for a
reexamination of such a doctrine, Moreover, even if I did not succeed, it is my
submission that there may be a question of unconstitutional application of such
a principle if, notwithstanding the advanced stage of pregnancy of Mrs. Juliet
Sison, she is not released on bail.
I am led to concur in the result primarily on the concept of the law of the case,
the present petitioners having failed in their previous petitions to transfer their
121
not the General Court-Martial was vested with jurisdiction to try and convict the
petitioner for the crime of murder. There seems to be no doubt that it had such
jurisdiction. According to Article of War 12 "General Courts-Martial shall have
power to try any person subject to military law for any crime or offense made
punishable by these articles, ... " The petitioner, being a staff sergeant of the
Philippine Scouts, United States Army, is a person subject to military law, under
Article of War 2, and in time of war, the crime of murder committed by a person
subject to military law, comes within the jurisdiction of a court-martial, in
accordance with Article of War 92." 2. What minimizes the difficulty facing a
detained person, triable by a military tribunal, is this categorical
pronouncement by Justice Antonio, speaking for the Court, in the
aforesaid Aquino v. Military Commission decision: "It is important to note here
that an accused being tried before a military tribunal enjoys the specific
constitutional safeguards pertaining to criminal trials. Thus, he is entitled to be
heard by himself and counsel to be informed of the nature and cause of the
accusation, to meet the witnesses face to face, to have compulsory process to
secure the attendance of witnesses and the production of evidence in his
behalf, and to be exempt from being a witness against himself. As in trial before
civil courts, the presumption of innocence can only be overcome by evidence
beyond reasonable doubt of the guilt of the accused. These tribunals, in
general, are "bound to observe the fundamental rules of law and principles of
justice observed and expounded by the civil judicature" ... There is, therefore,
no justification for petitioner's contention that such military tribunals are
concerned primarily with the conviction of an accused and that proceedings
therein involve the complete destruction and abolition of petitioner's
constitutional rights." Such being the case, the well-settled doctrine announced
as early as 1924 by Justice Malcolm in Conde v. Rivera and subsequently
reiterated, the latest case being Gumabon v. Director of Prisons that came out
in 1971, to the effect that a denial of a constitutional right may oust the Court
of jurisdiction, finds pertinence. In this petition, however, counsel failed to
invoke such a principle, relying instead on Jovito Go not falling within
Proclamation No. 1081. There is plausibility to the argument that under the
ruling in Aquino v. Ponce Enrile, the offense for which Go was indicted is not
included in the crime of insurrection or rebellion which supplied the basis for
preventive detention under martial law proclamation. That is not decisive of the
controversy before us in view of the fact, as mentioned above, that a military
tribunal is vested with jurisdiction where the prosecution is one for
kidnapping." 5
2. I am for the reexamination of the doctrine that the suspension of the
privilege of habeas corpus carries with it the suspension of the right to bail.
That was my view as one of the counsel in Hernandez v. Montesa, 6 heard and
thereafter decided in one opinion with Nava v. Gatmaitan. As set forth in the
dissenting opinion of Justice Teehankee, the majority was of that view but
unfortunately there was one vote short of the necessary six affirmative votes at
122
123
the nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses in his behalf (Article III, Section 1,
Paragraph 17, of the Constitution), tends to aid the accused to prove his
innocence and obtain acquittal. If it be contended that the suspension of the
privilege of the writ of habeas corpus includes the suspension of the distinct
right to bail or to be provisionally at liberty, it would a fortioriimply the
suspension of all his other rights (even the rights to be tried by a court) that
may win for him ultimate acquittal and, hence, absolute freedom. The latter
result is not insisted upon for being patently untenable."
I cannot improve on the presentation of the rationale of the failed majority in
the cited right to bail cases as made in the oft-cited work of Tanada and
Fernando, and herewith reproduce the same:
In Nava v. Gatmaitan and Hernandez v. Montesa, the question
presented before the Supreme Court was the effect on the
right to bail of the suspension of the writ of habeas corpus. For
lack of one vital vote, to make a majority of six as required by
the Judiciary Act, the Supreme Court missed an opportunity to
speak in unmistakable language that constitutional rights
mean what they say and that the Constitution is supreme,
emergency to the contrary notwithstanding. Respondent
judges in the above two petitions ruled that the petitioners
were included among those coming within the terms of the
suspension of the privilege of the writ of habeas corpus and
were for that reason not entitled to their constitutional right to
bail Upon the matter being taken before the Supreme Court,
five of the nine Justices who voted on the question were of the
opinion that petitioners under the Constitution have the right
to bail unless it could be shown that evidence of guilt for the
capital offense of which they were charged were strong. In
thus arriving at that conclusion, the above five justices merely
applied literally the terms of the controlling constitutional
provision.
124
FERNANDO, J.:
A correct appreciation of the controlling doctrine as to the effect, if any, to be
attached to a statute subsequently adjudged invalid, is decisive of this appeal
from a lower court decision. Plaintiff Francisco Serrano de Agbayani, now
appellee, was able to obtain a favorable judgment in her suit against
defendant, now appellant Philippine National Bank, permanently enjoining the
other defendant, the Provincial Sheriff of Pangasinan, from proceeding with an
extra-judicial foreclosure sale of land belonging to plaintiff mortgaged to
appellant Bank to secure a loan declared no longer enforceable, the
prescriptive period having lapsed. There was thus a failure to sustain the
defense raised by appellant that if the moratorium under an Executive Order
and later an Act subsequently found unconstitutional were to be counted in the
computation, then the right to foreclose the mortgage was still subsisting. In
arriving at such a conclusion, the lower court manifested a tenacious adherence
to the inflexible view that an unconstitutional act is not a law, creating no rights
and imposing no duties, and thus as inoperative as if it had never been. It was
oblivious to the force of the principle adopted by this Court that while a
statute's repugnancy to the fundamental law deprives it of its character as a
juridical norm, its having been operative prior to its being nullified is a fact that
is not devoid of legal consequences. As will hereafter be explained, such a
failing of the lower court resulted in an erroneous decision. We find for
appellant Philippine National Bank, and we reverse.
There is no dispute as to the facts. Plaintiff obtained the loan in the amount of
P450.00 from defendant Bank dated July 19, 1939, maturing on July 19, 1944,
secured by real estate mortgage duly registered covering property described in
125
T.C.T. No. 11275 of the province of Pangasinan. As of November 27, 1959, the
balance due on said loan was in the amount of P1,294.00. As early as July 13 of
the same year, defendant instituted extra-judicial foreclosure proceedings in
the office of defendant Provincial Sheriff of Pangasinan for the recovery of the
balance of the loan remaining unpaid. Plaintiff countered with his suit against
both defendants on August 10, 1959, her main allegation being that the
mortgage sought to be foreclosed had long prescribed, fifteen years having
elapsed from the date of maturity, July 19, 1944. She sought and was able to
obtain a writ of preliminary injunction against defendant Provincial Sheriff,
which was made permanent in the decision now on appeal. Defendant Bank in
its answer prayed for the dismissal of the suit as even on plaintiff's own theory
the defense of prescription would not be available if the period from March 10,
1945, when Executive Order No. 32 1 was issued, to July 26, 1948, when the
subsequent legislative act 2 extending the period of moratorium was declared
invalid, were to be deducted from the computation of the time during which the
bank took no legal steps for the recovery of the loan. As noted, the lower court
did not find such contention persuasive and decided the suit in favor of plaintiff.
Hence this appeal, which, as made clear at the outset, possesses merit, there
being a failure on the part of the lower court to adhere to the applicable
constitutional doctrine as to the effect to be given to a statute subsequently
declared invalid.
1. The decision now on appeal reflects the orthodox view that an
unconstitutional act, for that matter an executive order or a municipal
ordinance likewise suffering from that infirmity, cannot be the source of any
legal rights or duties. Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared results in its being
to all intents and purposes a mere scrap of paper. As the new Civil Code puts it:
"When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern. Administrative or executive
acts, orders and regulations shall be valid only when they are not contrary to
the laws of the Constitution. 3 It is understandable why it should be so, the
Constitution being supreme and paramount. Any legislative or executive act
contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may
not however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have
been in force and had to be complied with. This is so as until after the judiciary,
in an appropriate case, declares its invalidity, it is entitled to obedience and
respect. Parties may have acted under it and may have changed their positions.
What could be more fitting than that in a subsequent litigation regard be had to
what has been done while such legislative or executive act was in operation
and presumed to be valid in all respects. It is now accepted as a doctrine that
prior to its being nullified, its existence as a fact must be reckoned with. This is
merely to reflect awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or not a legislative or
executive measure is valid, a period of time may have elapsed before it can
exercise the power of judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and justice then, if there be
no recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: "The actual existence
of a statute, prior to such a determination [of unconstitutionality], is an
operative fact and may have consequences which cannot justly be ignored. The
past cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in various
aspects, with respect to particular relations, individual and corporate, and
particular conduct, private and official." 4 This language has been quoted with
approval in a resolution inAraneta v. Hill 5 and the decision in Manila Motor Co.,
Inc. v. Flores. 6 An even more recent instance is the opinion of Justice Zaldivar
speaking for the Court in Fernandez v. Cuerva and Co. 7
2. Such an approach all the more commends itself whenever police power
legislation intended to promote public welfare but adversely affecting property
rights is involved. While subject to be assailed on due process, equal protection
and non-impairment grounds, all that is required to avoid the corrosion of
invalidity is that the rational basis or reasonableness test is satisfied. The
legislature on the whole is not likely to allow an enactment suffering, to
paraphrase Cardozo, from the infirmity of out running the bounds of reason and
resulting in sheer oppression. It may be of course that if challenged, an adverse
judgment could be the result, as its running counter to the Constitution could
still be shown. In the meanwhile though, in the normal course of things, it has
been acted upon by the public and accepted as valid. To ignore such a fact
would indeed be the fruitful parent of injustice. Moreover, as its constitutionality
is conditioned on its being fair or reasonable, which in turn is dependent on the
actual situation, never static but subject to change, a measure valid when
enacted may subsequently, due to altered circumstances, be stricken down.
That is precisely what happened in connection with Republic Act No. 342, the
moratorium legislation, which continued Executive Order No. 32, issued by the
then President Osmea, suspending the enforcement of payment of all debts
and other monetary obligations payable by war sufferers. So it was explicitly
held in Rutter v. Esteban 8 where such enactment was considered in 1953
"unreasonable and oppressive, and should not be prolonged a minute longer,
and, therefore, the same should be declared null and void and without
effect." 9 At the time of the issuance of the above Executive Order in 1945 and
of the passage of such Act in 1948, there was a factual justification for the
moratorium. The Philippines was confronted with an emergency of impressive
126
magnitude at the time of her liberation from the Japanese military forces in
1945. Business was at a standstill. Her economy lay prostrate. Measures,
radical measures, were then devised to tide her over until some semblance of
normalcy could be restored and an improvement in her economy noted. No
wonder then that the suspension of enforcement of payment of the obligations
then existing was declared first by executive order and then by legislation. The
Supreme Court was right therefore in rejecting the contention that on its face,
the Moratorium Law was unconstitutional, amounting as it did to the
impairment of the obligation of contracts. Considering the circumstances
confronting the legitimate government upon its return to the Philippines, some
such remedial device was needed and badly so. An unyielding insistence then
on the rights to property on the part of the creditors was not likely to meet with
judicial sympathy. Time passed however, and conditions did change.
When the legislation was before this Court in 1953, the question before it was
its satisfying the rational basis test, not as of the time of its enactment but as
of such date. Clearly, if then it were found unreasonable, the right to nonimpairment of contractual obligations must prevail over the assertion of
community power to remedy an existing evil. The Supreme Court was
convinced that such indeed was the case. As stated in the opinion of Justice
Bautista Angelo: "But we should not lose sight of the fact that these obligations
had been pending since 1945 as a result of the issuance of Executive Orders
Nos. 25 and 32 and at present their enforcement is still inhibited because of the
enactment of Republic Act No. 342 and would continue to be unenforceable
during the eight-year period granted to prewar debtors to afford them an
opportunity to rehabilitate themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve (12) years before they
could affect a liquidation of their investment dating as far back as 1941. This
period seems to us unreasonable, if not oppressive. While the purpose of
Congress is plausible, and should be commended, the relief accorded works
injustice to creditors who are practically left at the mercy of the debtors. Their
hope to effect collection becomes extremely remote, more so if the credits are
unsecured. And the injustice is more patent when, under the law the debtor is
not even required to pay interest during the operation of the relief, unlike
similar statutes in the United States. 10 The conclusion to which the foregoing
considerations inevitably led was that as of the time of adjudication, it was
apparent that Republic Act No. 342 could not survive the test of validity.
Executive Order No. 32 should likewise be nullified. That before the decision
they were not constitutionally infirm was admitted expressly. There is all the
more reason then to yield assent to the now prevailing principle that the
existence of a statute or executive order prior to its being adjudged void is an
operative fact to which legal consequences are attached.
3. Precisely though because of the judicial recognition that moratorium was a
valid governmental response to the plight of the debtors who were war
sufferers, this Court has made clear its view in a series of cases impressive in
their number and unanimity that during the eight-year period that Executive
Order No. 32 and Republic Act No. 342 were in force, prescription did not run.
So
it
has
been
held
from Day
v.
Court
of
First
Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down only last
year. What is deplorable is that as of the time of the lower court decision on
January 27, 1960, at least eight decisions had left no doubt as to the
prescriptive period being tolled in the meanwhile prior to such adjudication of
invalidity. 13 Speaking of the opposite view entertained by the lower court, the
present Chief Justice, in Liboro v. Finance and Mining Investments Corp. 14 has
categorized it as having been "explicitly and consistently rejected by this
Court." 15
The error of the lower court in sustaining plaintiff's suit is thus manifest. From
July 19, 1944, when her loan matured, to July 13, 1959, when extra-judicial
foreclosure proceedings were started by appellant Bank, the time consumed is
six days short of fifteen years. The prescriptive period was tolled however, from
March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953,
when the decision of Rutter v. Esteban was promulgated, covering eight years,
two months and eight days. Obviously then, when resort was had extrajudicially to the foreclosure of the mortgage obligation, there was time to spare
before prescription could be availed of as a defense.
WHEREFORE, the decision of January 27, 1960 is reversed and the suit of
plaintiff filed August 10, 1959 dismissed. No costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER,
INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE
REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV,
ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.
127
128
This Court has declared that while lower courts should observe a becoming
modesty in examining constitutional questions, they are nonetheless not
prevented from resolving the same whenever warranted, subject only to review
by the highest tribunal. 6 We have jurisdiction under the Constitution to "review,
revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of
court may provide," final judgments and orders of lower courts in, among
others, all cases involving the constitutionality of certain measures. 7 This
simply means that the resolution of such cases may be made in the first
instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that
presumption is not by any means conclusive and in fact may be rebutted.
Indeed, if there be a clear showing of their invalidity, and of the need to declare
them so, then "will be the time to make the hammer fall, and heavily," 8 to
recall Justice Laurel's trenchant warning. Stated otherwise, courts should not
follow the path of least resistance by simply presuming the constitutionality of
a law when it is questioned. On the contrary, they should probe the issue more
deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and
so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there
should be no shirking of the task for fear of retaliation, or loss of favor, or
popular censure, or any other similar inhibition unworthy of the bench,
especially this Court.
The challenged measure is denominated an executive order but it is really
presidential decree, promulgating a new rule instead of merely implementing
an existing law. It was issued by President Marcos not for the purpose of taking
care that the laws were faithfully executed but in the exercise of his legislative
authority under Amendment No. 6. It was provided thereunder that whenever in
his judgment there existed a grave emergency or a threat or imminence thereof
or whenever the legislature failed or was unable to act adequately on any
matter that in his judgment required immediate action, he could, in order to
meet the exigency, issue decrees, orders or letters of instruction that were to
have the force and effect of law. As there is no showing of any exigency to
justify the exercise of that extraordinary power then, the petitioner has reason,
indeed, to question the validity of the executive order. Nevertheless, since the
determination of the grounds was supposed to have been made by the
President "in his judgment, " a phrase that will lead to protracted discussion not
really necessary at this time, we reserve resolution of this matter until a more
appropriate occasion. For the nonce, we confine ourselves to the more
fundamental question of due process.
129
indispensable that the two sides complement each other, as unto the bow the
arrow, in leading to the correct ruling after examination of the problem not from
one or the other perspective only but in its totality. A judgment based on less
that this full appraisal, on the pretext that a hearing is unnecessary or useless,
is tainted with the vice of bias or intolerance or ignorance, or worst of all, in
repressive regimes, the insolence of power.
The minimum requirements of due process are notice and hearing 13 which,
generally speaking, may not be dispensed with because they are intended as a
safeguard against official arbitrariness. It is a gratifying commentary on our
judicial system that the jurisprudence of this country is rich with applications of
this guaranty as proof of our fealty to the rule of law and the ancient rudiments
of fair play. We have consistently declared that every person, faced by the
awesome power of the State, is entitled to "the law of the land," which Daniel
Webster described almost two hundred years ago in the famous Dartmouth
College Case, 14 as "the law which hears before it condemns, which proceeds
upon inquiry and renders judgment only after trial." It has to be so if the rights
of every person are to be secured beyond the reach of officials who, out of
mistaken zeal or plain arrogance, would degrade the due process clause into a
worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be
sure, there are a number of admitted exceptions. The conclusive presumption,
for example, bars the admission of contrary evidence as long as such
presumption is based on human experience or there is a rational connection
between the fact proved and the fact ultimately presumed therefrom. 15 There
are instances when the need for expeditions action will justify omission of these
requisites, as in the summary abatement of a nuisance per se, like a mad dog
on the loose, which may be killed on sight because of the immediate danger it
poses to the safety and lives of the people. Pornographic materials,
contaminated meat and narcotic drugs are inherently pernicious and may be
summarily destroyed. The passport of a person sought for a criminal offense
may be cancelled without hearing, to compel his return to the country he has
fled. 16Filthy restaurants may be summarily padlocked in the interest of the
public health and bawdy houses to protect the public morals. 17 In such
instances, previous judicial hearing may be omitted without violation of due
process in view of the nature of the property involved or the urgency of the
need to protect the general welfare from a clear and present danger.
The protection of the general welfare is the particular function of the police
power which both restraints and is restrained by due process. The police power
is simply defined as the power inherent in the State to regulate liberty and
property for the promotion of the general welfare. 18 By reason of its function,
it extends to all the great public needs and is described as the most pervasive,
the least limitable and the most demanding of the three inherent powers of the
State, far outpacing taxation and eminent domain. The individual, as a member
of society, is hemmed in by the police power, which affects him even before he
is born and follows him still after he is dead from the womb to beyond the
tomb in practically everything he does or owns. Its reach is virtually limitless.
It is a ubiquitous and often unwelcome intrusion. Even so, as long as the
activity or the property has some relevance to the public welfare, its regulation
under the police power is not only proper but necessary. And the justification is
found in the venerable Latin maxims, Salus populi est suprema lex and Sic
utere tuo ut alienum non laedas, which call for the subordination of individual
interests to the benefit of the greater number.
It is this power that is now invoked by the government to justify Executive
Order No. 626-A, amending the basic rule in Executive Order No. 626,
prohibiting the slaughter of carabaos except under certain conditions. The
original measure was issued for the reason, as expressed in one of its
Whereases, that "present conditions demand that the carabaos and the
buffaloes be conserved for the benefit of the small farmers who rely on them
for energy needs." We affirm at the outset the need for such a measure. In the
face of the worsening energy crisis and the increased dependence of our farms
on these traditional beasts of burden, the government would have been remiss,
indeed, if it had not taken steps to protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law
regulating the registration, branding and slaughter of large cattle was claimed
to be a deprivation of property without due process of law. The defendant had
been convicted thereunder for having slaughtered his own carabao without the
required permit, and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to prevent the
indiscriminate killing of carabaos, which were then badly needed by farmers. An
epidemic had stricken many of these animals and the reduction of their number
had resulted in an acute decline in agricultural output, which in turn had caused
an incipient famine. Furthermore, because of the scarcity of the animals and
the consequent increase in their price, cattle-rustling had spread alarmingly,
necessitating more effective measures for the registration and branding of
these animals. The Court held that the questioned statute was a valid exercise
of the police power and declared in part as follows:
To justify the State in thus interposing its authority in behalf of
the public, it must appear, first, that the interests of the public
generally, as distinguished from those of a particular class,
require such interference; and second, that the means are
reasonably necessary for the accomplishment of the purpose,
and not unduly oppressive upon individuals. ...
130
there is no reason either to prohibit their transfer as, not to be flippant dead
meat.
In the light of the tests mentioned above, we hold with the Toribio Case that the
carabao, as the poor man's tractor, so to speak, has a direct relevance to the
public welfare and so is a lawful subject of Executive Order No. 626. The
method chosen in the basic measure is also reasonably necessary for the
purpose sought to be achieved and not unduly oppressive upon individuals,
again following the above-cited doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at least seven years old if
male and eleven years old if female upon issuance of the necessary permit, the
executive order will be conserving those still fit for farm work or breeding and
preventing their improvident depletion.
In the instant case, the carabaos were arbitrarily confiscated by the police
station commander, were returned to the petitioner only after he had filed a
complaint for recovery and given a supersedeas bond of P12,000.00, which was
ordered confiscated upon his failure to produce the carabaos when ordered by
the trial court. The executive order defined the prohibition, convicted the
petitioner and immediately imposed punishment, which was carried out
forthright. The measure struck at once and pounced upon the petitioner without
giving him a chance to be heard, thus denying him the centuries-old guaranty
of elementary fair play.
But while conceding that the amendatory measure has the same lawful subject
as the original executive order, we cannot say with equal certainty that it
complies with the second requirement, viz., that there be a lawful method. We
note that to strengthen the original measure, Executive Order No. 626-A
imposes an absolute ban not on theslaughter of the carabaos but on
their movement, providing that "no carabao regardless of age, sex, physical
condition or purpose (sic) and no carabeef shall be transported from one
province to another." The object of the prohibition escapes us. The reasonable
connection between the means employed and the purpose sought to be
achieved by the questioned measure is missing
We do not see how the prohibition of the inter-provincial transport of carabaos
can prevent their indiscriminate slaughter, considering that they can be killed
anywhere, with no less difficulty in one province than in another. Obviously,
retaining the carabaos in one province will not prevent their slaughter there,
any more than moving them to another province will make it easier to kill them
there. As for the carabeef, the prohibition is made to apply to it as otherwise, so
says executive order, it could be easily circumvented by simply killing the
animal. Perhaps so. However, if the movement of the live animals for the
purpose of preventing their slaughter cannot be prohibited, it should follow that
Even if a reasonable relation between the means and the end were to be
assumed, we would still have to reckon with the sanction that the measure
applies for violation of the prohibition. The penalty is outright confiscation of
the carabao or carabeef being transported, to be meted out by the executive
authorities, usually the police only. In the Toribio Case, the statute was
sustained because the penalty prescribed was fine and imprisonment, to be
imposed by the court after trial and conviction of the accused. Under the
challenged measure, significantly, no such trial is prescribed, and the property
being transported is immediately impounded by the police and declared, by the
measure itself, as forfeited to the government.
It has already been remarked that there are occasions when notice and hearing
may be validly dispensed with notwithstanding the usual requirement for these
minimum guarantees of due process. It is also conceded that summary action
may be validly taken in administrative proceedings as procedural due process is
not necessarily judicial only. 20 In the exceptional cases accepted, however.
there is a justification for the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and the urgency of the
need to correct it.
In the case before us, there was no such pressure of time or action calling for
the petitioner's peremptory treatment. The properties involved were not even
inimical per se as to require their instant destruction. There certainly was no
reason why the offense prohibited by the executive order should not have been
proved first in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we held
in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the
violation thereof should have been pronounced not by the police only but by a
court of justice, which alone would have had the authority to impose the
prescribed penalty, and only after trial and conviction of the accused.
131
We also mark, on top of all this, the questionable manner of the disposition of
the confiscated property as prescribed in the questioned executive order. It is
there authorized that the seized property shall "be distributed to charitable
institutions and other similar institutions as the Chairman of the National Meat
Inspection Commissionmay see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industrymay see fit, in the
case of carabaos." (Emphasis supplied.) The phrase "may see fit" is an
extremely generous and dangerous condition, if condition it is. It is laden with
perilous opportunities for partiality and abuse, and even corruption. One
searches in vain for the usual standard and the reasonable guidelines, or better
still, the limitations that the said officers must observe when they make their
distribution. There is none. Their options are apparently boundless. Who shall
be the fortunate beneficiaries of their generosity and by what criteria shall they
be chosen? Only the officers named can supply the answer, they and they
alone may choose the grantee as they see fit, and in their own exclusive
discretion. Definitely, there is here a "roving commission," a wide and sweeping
authority that is not "canalized within banks that keep it from overflowing," in
short, a clearly profligate and therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of
the police power because the method employed to conserve the carabaos is
not reasonably necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the property
confiscated is denied the right to be heard in his defense and is immediately
condemned and punished. The conferment on the administrative authorities of
the power to adjudge the guilt of the supposed offender is a clear
encroachment on judicial functions and militates against the doctrine of
separation of powers. There is, finally, also an invalid delegation of legislative
powers to the officers mentioned therein who are granted unlimited discretion
in the distribution of the properties arbitrarily taken. For these reasons, we
hereby declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station
commander who confiscated the petitioner's carabaos is not liable in damages
for enforcing the executive order in accordance with its mandate. The law was
at that time presumptively valid, and it was his obligation, as a member of the
police, to enforce it. It would have been impertinent of him, being a mere
subordinate of the President, to declare the executive order unconstitutional
and, on his own responsibility alone, refuse to execute it. Even the trial court, in
fact, and the Court of Appeals itself did not feel they had the competence, for
all their superior authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his
rights as he saw them, this case would never have reached us and the taking of
his property under the challenged measure would have become
afait accompli despite its invalidity. We commend him for his spirit. Without the
present challenge, the matter would have ended in that pump boat in Masbate
and another violation of the Constitution, for all its obviousness, would have
been perpetrated, allowed without protest, and soon forgotten in the limbo of
relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the
courage of the people to invoke them whenever they are ignored or violated.
Rights are but weapons on the wall if, like expensive tapestry, all they do is
embellish and impress. Rights, as weapons, must be a promise of protection.
They become truly meaningful, and fulfill the role assigned to them in the free
society, if they are kept bright and sharp with use by those who are not afraid
to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional.
Except as affirmed above, the decision of the Court of Appeals is reversed.
The supersedeas bond is cancelled and the amount thereof is ordered restored
to the petitioner. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15127
for
plaintiff-appellant.
CONCEPCION, J.:
Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of
Manila, absolving defendant Arellano University from plaintiff's complaint, with
costs against the plaintiff, and dismissing defendant's counter claim, for
insufficiency of proof thereon.
In the language of the decision appealed from:
132
It is admitted that, on August 16, 1949, the Director of Private Schools issued
Memorandum No. 38, series of 1949, on the subject of "Scholarship," addressed
to "All heads of private schools, colleges and universities," reading:
1. School catalogs and prospectuses submitted to this, Bureau show
that some schools offer full or partial scholarships to deserving
students for excellence in scholarship or for leadership in extracurricular activities. Such inducements to poor but gifted students
should be encouraged. But to stipulate the condition that such
scholarships are good only if the students concerned continue in the
same school nullifies the principle of merit in the award of these
scholarships.
2. When students are given full or partial scholarships, it is understood
that such scholarships are merited and earned. The amount in tuition
and other fees corresponding to these scholarships should not be
subsequently charged to the recipient students when they decide to
quit school or to transfer to another institution. Scholarships should not
be offered merely to attract and keep students in a school.
3. Several complaints have actually been received from students who
have enjoyed scholarships, full or partial, to the effect that they could
not transfer to other schools since their credentials would not be
released unless they would pay the fees corresponding to the period of
the scholarships. Where the Bureau believes that the right of the
student to transfer is being denied on this ground, it reserves the right
to authorize such transfer.
that defendant herein received a copy of this memorandum; that plaintiff asked
the Bureau of Private Schools to pass upon the issue on his right to secure the
transcript of his record in defendant University, without being required to
refund the sum of P1,033.87; that the Bureau of Private Schools upheld the
position taken by the plaintiff and so advised the defendant; and that, this
notwithstanding, the latter refused to issue said transcript of records, unless
said refund were made, and even recommended to said Bureau that it issue a
written order directing the defendant to release said transcript of record, "so
that the case may be presented to the court for judicial action." As above
stated, plaintiff was, accordingly, constrained to pay, and did pay under protest,
said sum of P1,033.87, in order that he could take the bar examination in 1953.
Subsequently, he brought this action for the recovery of said amount, aside
from P2,000 as moral damages, P500 as exemplary damages, P2,000 as
attorney's fees, and P500 as expenses of litigation.
In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of
Private Schools, namely, that the provisions of its contract with plaintiff are
valid and binding and that the memorandum above-referred to is null and void.
It, likewise, set up a counterclaim for P10,000.00 as damages, and P3,000 as
attorney's fees.
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The issue in this case is whether the above quoted provision of the contract
between plaintiff and the defendant, whereby the former waived his right to
transfer to another school without refunding to the latter the equivalent of his
scholarships in cash, is valid or not. The lower court resolved this question in
the affirmative, upon the ground that the aforementioned memorandum of the
Director of Private Schools is not a law; that the provisions thereof are advisory,
not mandatory in nature; and that, although the contractual provision "may be
unethical, yet it was more unethical for plaintiff to quit studying with the
defendant without good reasons and simply because he wanted to follow the
example of his uncle." Moreover, defendant maintains in its brief that the
aforementioned memorandum of the Director of Private Schools is null and void
because said officer had no authority to issue it, and because it had been
neither approved by the corresponding department head nor published in the
official gazette.
We do not deem it necessary or advisable to consider as the lower court did,
the question whether plaintiff had sufficient reasons or not to transfer from
defendant University to the Abad Santos University. The nature of the issue
before us, and its far reaching effects, transcend personal equations and
demand a determination of the case from a high impersonal plane. Neither do
we deem it essential to pass upon the validity of said Memorandum No. 38, for,
regardless of the same, we are of the opinion that the stipulation in question is
contrary to public policy and, hence, null and void. The aforesaid memorandum
merely incorporates a sound principle of public policy. As the Director of Private
Schools correctly pointed, out in his letter, Exhibit B, to the defendant,
There is one more point that merits refutation and that is whether or
not the contract entered into between Cui and Arellano University on
September 10, 1951 was void as against public policy. In the case of
Zeigel vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case
127, the court said: 'In determining a public policy of the state, courts
are limited to a consideration of the Constitution, the judicial decisions,
the statutes, and the practice of government officers.' It might take
more than a government bureau or office to lay down or establish a
public policy, as alleged in your communication, but courts consider
the practices of government officials as one of the four factors in
determining a public policy of the state. It has been consistently held in
America that under the principles relating to the doctrine of public
policy, as applied to the law of contracts, courts of justice will not
recognize or uphold a transaction which its object, operation, or
tendency is calculated to be prejudicial to the public welfare, to sound
morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S.
139; Heding vs. Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y.
359). If Arellano University understood clearly the real essence of
scholarships and the motives which prompted this office to issue
Memorandum No. 38, s. 1949, it should have not entered into a
contract of waiver with Cui on September 10, 1951, which is a direct
violation of our Memorandum and an open challenge to the authority of
the Director of Private Schools because the contract was repugnant to
sound morality and civic honesty. And finally, in Gabriel vs. Monte de
Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order to
declare a contract void as against public policy, a court must find that
the contract as to consideration or the thing to be done, contravenes
some established interest of society, or is inconsistent with sound
policy and good morals or tends clearly to undermine the security of
individual rights. The policy enunciated in Memorandum No. 38, s.
1949 is sound policy. Scholarship are awarded in recognition of merit
not to keep outstanding students in school to bolster its prestige. In the
understanding of that university scholarships award is a business
scheme designed to increase the business potential of an education
institution. Thus conceived it is not only inconsistent with sound policy
but also good morals. But what is morals? Manresa has this definition.
It is good customs; those generally accepted principles of morality
which have received some kind of social and practical confirmation.
The practice of awarding scholarships to attract students and keep
them in school is not good customs nor has it received some kind of
social and practical confirmation except in some private institutions as
in Arellano University. The University of the Philippines which
implements Section 5 of Article XIV of the Constitution with reference
to the giving of free scholarships to gifted children, does not require
scholars to reimburse the corresponding value of the scholarships if
they transfer to other schools. So also with the leading colleges and
universities of the United States after which our educational practices
or policies are patterned. In these institutions scholarships are
granted not to attract and to keep brilliant students in school for their
propaganda mine but to reward merit or help gifted students in whom
society has an established interest or a first lien. (Emphasis supplied.)
WHEREFORE, the decision appealed from is hereby reversed and another one
shall be entered sentencing the defendant to pay to the plaintiff the sum of
P1,033.87, with interest thereon at the legal rate from September 1, 1954, date
of the institution of this case, as well as the costs, and dismissing defendant's
counterclaim. It is so ordered.
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