SECOND DIVISION
(Remington, for brevity) and
[G.R. No. 108461. October 21, 1996]
PHILIPPINE INTERNATIONAL
TRADING CORPORATION,
petitioners, vs. HON PRESIDING
JUDGE ZOSIMO Z. ANGELES,
BRANCH 58, RTC, MAKATI;
REMINGTON INDUSTRIAL
SALES CORPORATION; AND
FIRESTONE CERAMIC, INC.,
respondents.
DECISION
TORRES, JR., J.:
The PHILIPPINE
INTERNATIONAL TRADING
CORPORATION (PITC, for brevity)
filed this Petition for Review on
Certiorari, seeking the reversal of the
Decision dated January 4, 1993 of
public respondent Hon. Zosimo Z.
Angeles. Presiding Judge of the
Regional Trial Court of Makati,
Branch 58, in civil Case No.92-158
entitled Remington Industrial Sales
Corporation, et. al. vs. Philippine
Industrial Trading Corporation.
The said decision upheld the Petition
for Prohibition and Mandamus of
REMINGTON INDUSTRIAL
SALES CORPORATION
1990 relative to amendments of
FIRESTONE CERAMICS, INC.
(Firestone, for brevity), and, in the
process, declared as null and void
and unconstitutional, PITCs
Administrative Order No. SOCPEC
89-08-01 and its appurtenant
regulations. The dispositive portion
of the decision reads:
WHEREFORE, premises considered,
judgment is hereby rendered in favor
of Petitioner and Intervenor and
against the Respondent, as follows:
1) Enjoining the further
implementation by the respondent of
the following issuances relative to
the applications for importation of
products from the Peoples Republic
of China, to wit:
a) Administrative Order No.
SOCPEC 89-08-01 dated August 30,
1989 (Annex A, Amended petition);
b) Prescribed Export Undertaking
Form (Annex B, Id.);
c) Prescribed Importer-Exporter
Agreement Form for non-exporter-
importer (Annex C, Id.);
d) Memorandum dated April 16,
Republic of China (PROC. for
Administrative Order NO. SOCPEC
89-08-01 (Annex D, Id.);
e) Memorandum dated May 6, 1991
relative to Revised Schedule of Fees
for the processing of import
applications (Annexes E, E-1., Ind.);
f) Rules and Regulations relative to
liquidation of unfulfilled
Undertakings and expired export
credits (Annex Z, Supplemental
Petition),
the foregoing being all null and void
and unconstitutional; and,
2) Commanding respondent to
approve forthwith all the pending
applications of, and all those that
may hereafter be filed by, the
petitioner and the Intervenor, free
from and without the requirements
prescribed in a the above-mentioned
issuance.
IT IS SO ORDERED."
The controversy springs from the
issuance by the PITC of
Administrative Order No. SOCPEC
89-08-01,[1] under which,
applications to the PITC for
importation from the Peoples
brevity) must be accompanied by a
viable and confirmed Export
Program of Philippine Products to
PROC carried out by the importer
himself or through a tie-up with a
legitimate importer in an amount
equivalent to the value of the
importation from PROC being
applied for, or, simply, at one is to
one ratio.
Pertinent provisions of the
questioned administrative order read:
3. COUNTERPART EXPORTS TO
PROC
In addition to existing requirements
for the processing of import
application for goods and
commodities originating from
PROC, it is declared that:
3.1 All applications covered by these
rules must be accompanied by a
viable and confirmed EXPORT
PROGRAM of Philippine products
to PROC in an amount equivalent to
the value of the importation from
PROC being applied for. Such export
program must be carried out and
completed within six (6) months
from date of approval of the Import
Application by PITC. PITC shall
reject/deny any application for
importation from PROC without the
1
accompanying export program
mentioned above.
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]
3.3 EXPORT PROGRAM
DOCUMENTS which are to be
submitted by the importer together
with his Import Application are as
follows:
a) Firm Contract, Sales Invoice or
Letter of Credit.
b) Export Performance Guarantee
(See Article 4 hereof).
c) IMPORTER-EXPORTER
AGREEMENT for non-exporter
IMPORTER (PITC Form No. M-
1006). This form should be used if
IMPORTER has a tie-up with an
exporter for the export of Philippine
Products to PROC.
4. EXPORT GUARANTEE
To ensure that the export
commitments of the IMPORTER are
carried out in accordance with these
rules, all IMPORTERS concerned
are required to submit an EXPORT
PERFORMANCE GUARANTEE
(the Guarantee) at the time of filing
of the Import Application. The
amount of the guarantee shall be as
follows:
For essential commodities: 15% of
the value of the imports applied for.
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.
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
application 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 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
2
existing under Philippines 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.
Private respondent Remington was
allowed to import tools, machineries
and other similar goods. Firestones,
on the other hand, imported Calcine
Vauxite, which it used for the
manufacture of fire bricks, one of its
products.
Subsequently, for failing to comply
with their undertakings to submit
export credits equivalent to the value
of their importations, further import
applications were withheld by
petitioner PITC from private
respondents, such that the latter both
barred from importing goods from
PROC.[3]
Consequently, Remington filed a
Petition for Prohibition and
Mandamus, with prayer for issuance
of Temporary Restraining Order
and/or Writ of Preliminary
Injunction on January 20, 1992,
against PITC in the RTC Makati
Branch 58.[4] The court issued a
Temporary Restraining Order on
January 21, 1992, ordering PITC to
cease from exercising any power to
process applications of goods from
PROC.[5] Hearings on the
application for writ of preliminary
injunction ensued.
Private respondents Firestones was
allowed to intervene in the petition
on July 2, 1992,[6] thus joining
Remington in the latters charges
against PITC. It specifically asserts
that the questioned Administrative
Order is an undue restrictions of
trade, and hence, unconstitutional.
Upon trial, it was agreed that the
evidence adduced upon the hearing
on the Preliminary Injunction was
sufficient to completely adjudicate
the case, thus, the parties deemed it
proper that the entire case be
submitted for decision upon the
evidence so far presented.
The court rendered its Decision[7]
on January 4, 1992. The court ruled
that PITCs authority to process and
approve applications for imports
from SOCPEC and to issue rules and
regulations pursuant to LOI 444 and
P.D. No. 1071, has already been
repealed by EO No. 133, issued on
February 27, 1987 by President
Aquino.
The court observed:
Given such obliteration and/or of the 1987 Constitution, and
withdrawal of what used to be PITCs therefore, null and void.
regulatory authority under the
Special provisions embodied in LOI
444 from the enumeration of powers
Section 21. No treaty or international
that it could exercise effective
agreement shall be valid and
February 27, 1987 in virtue of
effective unless concurred in by at
Section 16 (d), EO No. 133, it may
least two-thirds of all the Members
now be successfully argued that the
of the Senate.
PITC can no longer exercise such
specific regulatory power in question
conformably with the legal precept
expresio unius est exclusio alterius. Furthermore, the subject
Administrative Order was issued in
restraint of trade, in violation of
Sections 1 and 19, Article XII of the
Moreover, the court continued, none
1987 Constitution, which reads:
of the Trade protocols of 1989, 1990
or 1991, has empowered the PITC,
expressly or impliedly to formulate
or promulgate the assailed Section 1. The goals of the national
Administrative Order. This fact, economy are a more equitable
makes the continued exercise by distribution of opportunities, income
PITC of the regulatory powers in and wealth; a sustained increase in
question unworthy of judicial the amount of goods and services
approval. Otherwise, it would be produced by the nation for the
sanctioning an undue exercise of benefit of the people; and, an
legislative power vested solely in the expanding productivity as the key to
Congress of the Philippines by raising the equality of life for all,
Section 1, Article VII of the 1987 especially the underprivileged.
Philippine Constitution.
Section 19. The State shall regulate
The lower court stated that the or prohibit monopolies when the
subject Administrative Order and public interest so requires. No
other similar issuances by PITC combination is restraint of trade or
suffer from serious constitutional unfair competition shall be allowed.
infirmity, having been promulgated
in pursuance of an international
agreement (the Memorandum of
Lastly, the court declared the
Agreement between the Philippine
Administrative Order to be null and
and PROC), which has not been
void, since the same was not
concurred in by at least 2/3 of all the
published, contrary to Article 2 of
members of the Philippine Senate as
required by Article VII, Section 21,
3
the New Civil Code which provides,
that:
Article 2. Laws shall take effect
fifteen (15) days following the
completion of their publication in the
Official Gazette, unless the law
otherwise provides. xxx
Petitioner now comes to us on a
Petition for Review on Certiorari,[8]
questioning the courts decision
particularly on the propriety of the
lower courts declarations on the
validity of Administrative Order No.
89-08-01. The Court directed the
respondents to file their respective
Comments.
Subsequent events transpired,
however, which affect to some
extent, the submissions of the parties
to the present petition.
Following President Fidel V. Ramos
trip to Beijing, Peoples Republic of
China (PROC), from April 25 to 30,
1993, a new trade agreement was
entered into between the Philippines
and PROC, encouraging
liberalization of trade between the
two countries. In line therewith, on
April 20, 1993, the President,
through Chief Presidential Legal
Counsel Antonio T. Carpio, directed
the Department of Trade and
Industry and the PITC to cease
implementing Administrative Order
No. SOCPEC 89-08-01, as amended
by PITC Board Resolution Nos. 92-
01-05 and 92-03-08.[9]
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 of China Trade through the
Philippine International Trading
Corporation 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.
89-08-01, 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 trade balancing
measures with PROC were lifted by
the President, Administrative Order
SOCPEC No. 89-08-01 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 outstanding obligations of the
respondents for the charges relating
to the 0.5% Counter Export
Development Service in favor of
PITC, for the period when the
questioned Administrative Order
4
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 said governmental
entity were enumerated under
Section 5 and 6 thereof.[19]
On August 9, 1976, the late President
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
xxx
II. CHANNELS OF TRADE
1. The trade, direct or indirect,
between the Philippines and any of
the Socialist and other centrally-
planned economy countries shall
upon issuance hereof, be undertaken
by or coursed through the Philippine
International Trading Corporation.
This shall apply to the export and
import of all commodities of
products including those specified
for export or import by expressly
authorized government agencies.
xxx
4. The Philippine International
Trading Corporation shall participate
in all official trade and economic The Executive Order reads in part:
discussions between the Philippines
and other centrally-planned economy
countries. EXECUTIVE ORDER NO. 133
xxx XXX
V. SPECIAL PROVISIONS Section 16. Line Corporate Agencies
and Government Entities.
The Philippine International Trading
Corporation shall adopt such The following line corporate
measures and issue such rules and agencies and government entities
regulations as may be necessary for defined in Section 9 (c) of this
the effective discharge of its Executive Order that will perform
functions under these instructions. In their specific regulatory functions,
this connection, the processing and particularly developmental
approval of applications for export to responsibilities and specialized
or import from the Socialist and business activities in a manner
other centrally-planned economy consonant with the Department
countries shall, henceforth, be mandate, objectives, policies, plans
performed by the said Corporation. and programs:
(Emphasis ours)
xxx
After the EDSA Revolution, or more
specifically on February 27, 1987,
then President Corazon C. Aquino
d) Philippine International Trading
promulgated Executive Order (EO)
Corporation. This corporation, which
No. 133[21] reorganizing the
shall be supervised by the
Department of Trade and Industry
Undersecretary for International
(DTI) empowering the said
Trade, shall only engage in both
department to be the "primary
export and trading on new or non-
coordinative, promotive, facilitative
traditional products and markets not
and regulatory arm of the
normally pursued by the private
government for the countrys trade,
business sector; provide a wide range
industry and investment activities
of export oriented auxiliary services
(Sec. 2, EO 133). The PITC was
to the private sector; arrange for a
made one of DTIs line agencies.[22]
5
establish comprehensive system and
physical facilities for handling the
collection, processing, and
distribution of cargoes and other
commodities; monitor or coordinate
risk insurance services for the
existing institutions; promote and
organize, whenever warranted,
production enterprises and industrial
establishments and collaborate or
associate in joint venture with any
person, association, company or
entity, whether domestic or foreign,
in the fields of production,
marketing, procurement, and other
relate businesses; and provide
technical advisory, investigatory,
consultancy and management
services with respect to any and all
of the functions, activities, and
operations of the corporation.
Sometime in April, 1988, following
the State visit of President Aquino to
the PROC, the Philippines and
PROC entered into a memorandum
of Understanding[23] (MOU)
wherein the two countries agreed to
make joint efforts within the next
five years to expand bilateral trade to
US $600 US $800 Million by 1992,
and to strive for a steady progress
towards achieving a balance between
the value of their imports and exports
during the period, agreeing for the
purpose that upon the signing of the
Memorandum, both sides shall
undertake to establish the necessary
steps and procedures to be adopted
within the framework of the annual
midyear review meeting under the
Trade Protocol, in order to monitor
and ensure the implementation of the
MOU.
Conformably with the MOU, the
Philippines and PROC entered into a
Trade Protocol for the years 1989,
1990 and 1991,[24] under which was
specified the commodities to be
traded between them. The protocols
affirmed their agreement to jointly
endeavor to achieve more or less a
balance between the values of their
imports and exports in their bilateral
trade.
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 Service 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 that PITCs
authority to issue rules and
regulations pursuant to the Special
Provisions 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 now limited only to
new or non-traditional products and
markets not normally pursued by the
private business sector. There is no
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.
EO 133 established the DTI as the
primary coordinative, promotive,
facilitative and regulatory arm of
government for the countrys trade,
industry and investment activities,
which shall act as a catalyst for
intensified private sector activity in
order to accelerate and sustain
economic growth.[27] In furtherance
of this mandate, the DTI was
empowered, among others, to plan,
implement, and coordinate activities
of the government related to trade
industry and investments; to
formulate and administer policies
and guidelines for the investment
priorities plan and the delivery of
6
investment incentives; to formulate
country and product export strategies
which will guide the export
promotion and development thrust of
the government.[28] Corollarily, the
Secretary of Trade and Industry is
given the power to promulgate rules
and regulations necessary to carry
out the departments objectives,
policies, plans, programs and
projects.
The PITC, on the other hand, was
attached as an integral part to the
said department as one of its line
agencies,[29] and was given the
focal task of implementing the
departments programs.[30] The
absence of the regulatory power
formerly enshrined in the Special
Provisions of LOI 444, from Section
16 of EO 133, and the limitation of
its previously wide range of
functions, is noted. This does not
mean, however, that PITC has lost
the authority to issue the questioned
Administrative Order. It is our view
that PITC still holds such authority,
and may legally exercise it, as an
implementing arm, and under the
supervision of, the Department of
Trade and Industry.
Furthermore, the lower courts ruling
to the effect that the PITCs authority
to process and approve applications
for imports from SOCPEC and to
issue rules and regulations pursuant
to LOI 444 and P.D. 1071 has been
repealed by EO 133, is misplaced,
and did not consider the import
behind the issuance of the later
presidential edict.
The President could not have
intended to deprive herself of the
power to regulate the flow of trade
between the Philippines and PROC
under the two countries
Memorandum of Understanding, a
power which necessarily flows from
her office as Chief Executive. In
issuing Executive Order 133, the
President intended merely to
reorganize the Department of Trade
and Industry to cope with the need of
streamlined bureaucracy.[31]
Thus, there is no real inconsistency
between LOI 444 and EO 133. There
is, admittedly, a rearranging of the
administrative functions among the
administrative bodies affected by the
edict, but not an abolition of
executive power. Consistency in
statutes as in executive issuances, is
of prime importance, and, in the
absence of a showing to the contrary,
all laws are presumed to be
consistent with each other. Where it
is possible to do so, it is the duty of
courts, in the construction of statutes,
to harmonize and reconcile them,
and to adopt a constructions of a
statutory provision which
harmonizes and reconciles it with
other statutory provisions.[32] The
fact that a later enactment may relate
to the same subject matter as that of
an earlier statute is not of itself
sufficient to cause an implied repeal
of the latter, since the law may be
cumulative or a continuation of the time has come to grapple with
old one.[33] legislations and even judicial
decisions aimed at resolving issues
affecting not only individual rights
but also activities of which foreign
Similarly, the grant of quasi-
governments or entities may have
legislative powers in administrative
interests. Thus, administrative
bodies is not unconstitutional. Thus,
policies and regulations must be
as a result of the growing complexity
devised to suit these changing
of the modern society, it has become
business needs in a faster rate than to
necessary to create more and more
resort to traditional acts of the
administrative bodies to help in the
legislature.
regulation of its ramified activities.
Specialized in the particular field
assigned to them, they can deal with
the problems thereof with more This tendency finds support in a
expertise and dispatch than can be well-stated work on the subject, viz.:
expected from the legislature or the
courts of justice. This is the reason
for the increasing vesture of quasi-
Since legislatures had neither the
legislative and quasi-judicial powers
time nor the knowledge to create
in what is now not unreasonably
detailed rules, however, it was soon
called the fourth department of the
clear that new governmental
government.[34] Evidently, in the
arrangements would be needed to
exercise of such powers, the agency
handle the job of rule-making. The
concerned must commonly interpret
courts, moreover, many of them
and apply contracts and determine
already congested, would have been
the rights of private parties under
swamped if they had to adjudicate all
such contracts. One thrust of the
the controversies that the new
multiplication of administrative
legislation was bound to create; and
agencies is that the interpretation of
the judges, already obliged to handle
contracts and the determination of
a great diversity of cases, would
private rights thereunder is no longer
have been hard pressed to acquire the
uniquely judicial function,
knowledge they needed to deal
exercisable only by our regular
intelligently with all the new types of
courts. (Antipolo Realty Corporation
controversy.
vs. National Housing Authority, G.R.
No. L- 50444, August 31, 1987, 153
SCRA 399).
So the need to create a large number
of specialized administrative
agencies and to give them broader
With global trade and business
powers than administrators had
becoming more intricate nay even
traditionally exercised. These
with new discoveries in technology
included the power to issue
and electronics notwithstanding, the
7
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 the 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 importations, 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:
Article 2. Laws shall take effect after
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. xxx
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. Tuvera[36]
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 be
published if their purpose is to
enforce or implement existing law
pursuant also to a valid delegation,
Interpretative regulations and those
merely internal in nature, that is,
regulating only the personnel of the
administrative agency and not the
public, need not be published.
Neither is publication required of the
so-called letters of instructions
issued by administrative superiors
concerning the rules or guidelines to
be followed by their subordinates in
the performance of their duties.
xxx
We agree that the publication must
be in full or it is no publication at all
since its purpose is to inform the
public of the contents of the laws.
The Administrative Order under
consideration is one of those
issuances which should be published
for its effectivity, since its purpose is
to enforce and implement an existing
law pursuant to a valid delegation,
i.e., P.D. 1071, in relation to LOI
444 and EO 133.
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.
8
ACCORDINGLY, the assailed
decision of the lower court is hereby
AFFIRMED, to the effect that
judgment is hereby rendered in favor
of the private respondents, subject to
the following MODIFICATIONS:
1) Enjoining the petitioner:
a) From further charging the
petitioners the Counter Export
Development Service fee of 0.5% of
the total value of the unliquidated or
unfulfilled Undertakings of the
private respondents;
b) From further implementing the
provisions of Administrative Order
No. SOCPEC 89-08-01 and its
appurtenant rules; and
2) Requiring petitioner to approve
forthwith all the pending applications
of, and all those that may hereafter
be filed by, the petitioner and the
Intervenor, free from and without
complying with the requirements
prescribed in the above-stated
issuances.
SO ORDERED
REPUBLIC OF THE PHILIPPINES,
represented by NATIONAL
TELECOMMUNICATIONS
COMMISSION, petitioner, vs.
EXPRESS
TELECOMMUNICATION CO.,
INC. and BAYAN
TELECOMMUNICATIONS CO.,
INC., respondents.
[G.R. No. 147210. January 15, 2002]
BAYAN
TELECOMMUNICATIONS
(Bayantel), INC., petitioner, vs.
EXPRESS
TELECOMMUNICATION CO.,
INC. (Extelcom), respondent.
DECISION
YNARES-SANTIAGO, J.:
On December 29, 1992, International
Communications Corporation (now
Bayan Telecommunications, Inc. or
Bayantel) filed an application with
the National Telecommunications
Commission (NTC) for a Certificate
of Public Convenience or Necessity
(CPCN) to install, operate and
maintain a digital Cellular Mobile
Telephone System/Service (CMTS)
with prayer for a Provisional
Authority (PA). The application was
docketed as NTC Case No. 92-
486.[1]
Shortly thereafter, or on January 22,
1993, the NTC issued Memorandum
Circular No. 4-1-93 directing all
interested applicants for nationwide
or regional CMTS to file their
respective applications before the
Commission on or before February
15, 1993, and deferring the
acceptance of any application filed
after said date until further orders.[2]
On May 6, 1993, and prior to the
issuance of any notice of hearing by
the NTC with respect to Bayantels
original application, Bayantel filed
an urgent ex-parte motion to admit
an amended application.[3] On May
17, 1993, the notice of hearing issued
by the NTC with respect to this
amended application was published
in the Manila Chronicle. Copies of
the application as well as the notice
of hearing were mailed to all affected
parties. Subsequently, hearings were
conducted on the amended
application. But before Bayantel
could complete the presentation of
its evidence, the NTC issued an
Order dated December 19, 1993
stating:
In view of the recent grant of two (2)
separate Provisional Authorities in
favor of ISLACOM and GMCR,
Inc., which resulted in the closing
out of all available frequencies for
the service being applied for by
herein applicant, and in order that
this case may not remain pending for
an indefinite period of time, AS
PRAYED FOR, let this case be, as it
is, hereby ordered ARCHIVED
without prejudice to its reinstatement
if and when the requisite frequency
becomes available.
SO ORDERED.[4]
On June 18, 1998, the NTC issued
Memorandum Circular No. 5-6-98
re-allocating five (5) megahertz
(MHz) of the radio frequency
spectrum for the expansion of CMTS
networks. The re-allocated 5 MHz
were taken from the following
bands: 1730-1732.5 / 1825-1827.5
MHz and 1732.5-1735 / 1827.5-1830
MHz.[5]
Likewise, on March 23, 1999,
Memorandum Circular No. 3-3-99
was issued by the NTC re-allocating
an additional five (5) MHz
frequencies for CMTS service,
namely: 1735-1737.5 / 1830-1832.5
MHz; 1737.5-1740 / 1832.5-1835
MHz; 1740-1742.5 / 1835-1837.5
MHz; and 1742.5-1745 / 1837.5-
1840 MHz.[6]
On May 17, 1999, Bayantel filed an
Ex-Parte Motion to Revive Case,[7]
citing the availability of new
frequency bands for CMTS
operators, as provided for under
Memorandum Circular No. 3-3-99.
9
On February 1, 2000, the NTC
granted BayanTels motion to revive
the latters application and set the
case for hearings on February 9, 10,
15, 17 and 22, 2000.[8] The NTC
noted that the application was
ordered archived without prejudice
to its reinstatement if and when the
requisite frequency shall become
available.
Respondent Express
Telecommunication Co., Inc.
(Extelcom) filed in NTC Case No.
92-486 an Opposition (With Motion
to Dismiss) praying for the dismissal
of Bayantels application.[9]
Extelcom argued that Bayantels
motion sought the revival of an
archived application filed almost
eight (8) years ago. Thus, the
documentary evidence and the
allegations of respondent Bayantel in
this application are all outdated and
should no longer be used as basis of
the necessity for the proposed CMTS
service. Moreover, Extelcom alleged
that there was no public need for the
service applied for by Bayantel as
the present five CMTS operators ---
Extelcom, Globe Telecom, Inc.,
Smart Communication, Inc., Pilipino
Telephone Corporation, and Isla
Communication Corporation, Inc. ---
more than adequately addressed the
market demand, and all are in the
process of enhancing and expanding
their respective networks based on
recent technological developments.
Extelcom likewise contended that
there were no available radio
frequencies that could accommodate
a new CMTS operator as the
frequency bands allocated in NTC
Memorandum Circular No. 3-3-99
were intended for and had in fact
been applied for by the existing
CMTS operators. The NTC, in its
Memorandum Circular No. 4-1-93,
declared it its policy to defer the
acceptance of any application for
CMTS. All the frequency bands
allocated for CMTS use under the
NTCs Memorandum Circular No. 5-
11-88 and Memorandum Circular
No. 2-12-92 had already been
allocated to the existing CMTS
operators. Finally, Extelcom pointed
out that Bayantel is its substantial
stockholder to the extent of about
46% of its outstanding capital stock,
and Bayantels application
undermines the very operations of
Extelcom.
On March 13, 2000, Bayantel filed a
Consolidated Reply/Comment,[10]
stating that the opposition was
actually a motion seeking a
reconsideration of the NTC Order
reviving the instant application, and
thus cannot dwell on the material
allegations or the merits of the case.
Furthermore, Extelcom cannot claim
that frequencies were not available
inasmuch as the allocation and
assignment thereof rest solely on the
discretion of the NTC.
In the meantime, the NTC issued on
March 9, 2000 Memorandum
Circular No. 9-3-2000, re-allocating
the following radio frequency bands
for assignment to existing CMTS
operators and to public
telecommunication entities which
shall be authorized to install, operate
and maintain CMTS networks,
namely: 1745-1750MHz / 1840-
1845MHz; 1750-1775MHz / 1845-
1850MHz; 1765-1770MHz / 1860-
1865MHz; and 1770-1775MHz /
1865-1870MHz.[11]
On May 3, 2000, the NTC issued an
Order granting in favor of Bayantel a
provisional authority to operate
CMTS service.[12] The Order stated
in pertinent part:
On the issue of legal capacity on the
part of Bayantel, this Commission
has already taken notice of the
change in name of International
Communications Corporation to
Bayan Telecommunications, Inc.
Thus, in the Decision entered in
NTC Case No. 93-284/94-200 dated
19 July 1999, it was recognized that
Bayan Telecommunications, Inc.,
was formerly named International
Communications Corp. Bayantel and
ICC Telecoms, Inc. are one and the
same entity, and it necessarily
follows that what legal capacity ICC
Telecoms has or has acquired is also
the legal capacity that Bayantel
possesses.
On the allegation that the
Commission has committed an error
in allowing the revival of the instant
application, it appears that the Order
dated 14 December 1993 archiving
the same was anchored on the non-
availability of frequencies for
CMTS. In the same Order, it was
expressly stated that the archival
hereof, shall be without prejudice to
its reinstatement if and when the
requisite frequency becomes
available. Inherent in the said Order
is the prerogative of the Commission
in reviving the same, subject to
prevailing conditions. The Order of 1
February 2001, cited the availability
of frequencies for CMTS, and based
thereon, the Commission, exercising
its prerogative, revived and
reinstated the instant application.
The fact that the motion for revival
hereof was made ex-parte by the
applicant is of no moment, so long as
the oppositors are given the
opportunity to be later heard and
present the merits of their respective
oppositions in the proceedings.
On the allegation that the instant
application is already obsolete and
overtaken by developments, the issue
is whether applicant has the legal,
financial and technical capacity to
undertake the proposed project. The
determination of such capacity lies
solely within the discretion of the
Commission, through its applicable
rules and regulations. At any rate, the
oppositors are not precluded from
showing evidence disputing such
capacity in the proceedings at hand.
On the alleged non-availability of
frequencies for the proposed service
in view of the pending applications
for the same, the Commission takes
note that it has issued Memorandum
10
Circular 9-3-2000, allocating
additional frequencies for CMTS.
The eligibility of existing operators
who applied for additional
frequencies shall be treated and
resolved in their respective
applications, and are not in issue in
the case at hand.
Accordingly, the Motions for
Reconsideration filed by
SMARTCOM and GLOBE
TELECOMS/ISLACOM and the
Motion to Dismiss filed by
EXTELCOM are hereby DENIED
for lack of merit.[13]
The grant of the provisional
authority was anchored on the
following findings:
COMMENTS:
1. Due to the operational mergers
between Smart Communications,
Inc. and Pilipino Telephone
Corporation (Piltel) and between
Globe Telecom, Inc. (Globe) and Isla
Communications, Inc. (Islacom), free
and effective competition in the
CMTS market is threatened. The
fifth operator, Extelcom, cannot
provide good competition in as much
as it provides service using the
analog AMPS. The GSM system
dominates the market.
2. There are at present two applicants
for the assignment of the frequencies
in the 1.7 Ghz and 1.8 Ghz allocated
to CMTS, namely Globe and
Extelcom. Based on the number of
subscribers Extelcom has, there
appears to be no congestion in its
network - a condition that is
necessary for an applicant to be
assigned additional frequencies.
Globe has yet to prove that there is
congestion in its network considering
its operational merger with Islacom.
3. Based on the reports submitted to
the Commission, 48% of the total
number of cities and municipalities
are still without telephone service
despite the more than 3 million
installed lines waiting to be
subscribed.
CONCLUSIONS:
1. To ensure effective competition in
the CMTS market considering the
operational merger of some of the
CMTS operators, new CMTS
operators must be allowed to provide
the service.
2. The re-allocated frequencies for
CMTS of 3 blocks of 5 Mhz x 2 is
sufficient for the number of
applicants should the applicants be
qualified.
3. There is a need to provide service
to some or all of the remaining cities
and municipalities without telephone
service.
4. The submitted documents are
sufficient to determine compliance to
the technical requirements. The
applicant can be directed to submit
details such as channeling plans,
exact locations of cell sites, etc. as
the project implementation
progresses, actual area coverage
ascertained and traffic data are made
available. Applicant appears to be
technically qualified to undertake the
proposed project and offer the
proposed service.
IN VIEW OF THE FOREGOING
and considering that there is prima
facie evidence to show that
Applicant is legally, technically and
financially qualified and that the
proposed service is technically
feasible and economically viable, in
the interest of public service, and in
order to facilitate the development of
telecommunications services in all
areas of the country, as well as to
ensure healthy competition among
authorized CMTS providers, let a
PROVISIONAL AUTHORITY
(P.A.) be issued to Applicant
BAYAN
TELECOMMUNICATIONS, INC.
authorizing it to construct, install,
operate and maintain a Nationwide
Cellular Mobile Telephone Systems
(CMTS), subject to the following
terms and conditions without
prejudice to a final decision after
completion of the hearing which
shall be called within thirty (30) days
from grant of authority, in
accordance with Section 3, Rule 15,
Part IV of the Commissions Rules of
Practice and Procedure. xxx.[14]
Extelcom filed with the Court of
Appeals a petition for certiorari and
prohibition,[15] docketed as CA-
G.R. SP No. 58893, seeking the
annulment of the Order reviving the
application of Bayantel, the Order
granting Bayantel a provisional
authority to construct, install, operate
and maintain a nationwide CMTS,
and Memorandum Circular No. 9-3-
2000 allocating frequency bands to
new public telecommunication
entities which are authorized to
install, operate and maintain CMTS.
On September 13, 2000, the Court of
Appeals rendered the assailed
Decision,[16] the dispositive portion
of which reads:
WHEREFORE, the writs of
certiorari and prohibition prayed for
are GRANTED. The Orders of
public respondent dated February 1,
2000 and May 3, 2000 in NTC Case
No. 92-486 are hereby ANNULLED
and SET ASIDE and the Amended
Application of respondent Bayantel
is DISMISSED without prejudice to
the filing of a new CMTS
application. The writ of preliminary
injunction issued under our
Resolution dated August 15, 2000,
11
restraining and enjoining the
respondents from enforcing the
Orders dated February 1, 2000 and
May 3, 2000 in the said NTC case is
hereby made permanent. The Motion
for Reconsideration of respondent
Bayantel dated August 28, 2000 is
denied for lack of merit.
SO ORDERED.[17]
Bayantel filed a motion for
reconsideration of the above
decision.[18] The NTC, represented
by the Office of the Solicitor General
(OSG), also filed its own motion for
reconsideration.[19] On the other
hand, Extelcom filed a Motion for
Partial Reconsideration, praying that
NTC Memorandum Circular No. 9-
3-2000 be also declared null and
void.[20]
On February 9, 2001, the Court of
Appeals issued the assailed
Resolution denying all of the
motions for reconsideration of the
parties for lack of merit.[21]
Hence, the NTC filed the instant
petition for review on certiorari,
docketed as G.R. No. 147096,
raising the following issues for
resolution of this Court:
A. Whether or not the Order dated
February 1, 2000 of the petitioner
which revived the application of
respondent Bayantel in NTC Case
No. 92-486 violated respondent
Extelcoms right to procedural due
process of law;
B. Whether or not the Order dated
May 3, 2000 of the petitioner
granting respondent Bayantel a
provisional authority to operate a
CMTS is in substantial compliance
with NTC Rules of Practice and
Procedure and Memorandum
Circular No. 9-14-90 dated
September 4, 1990.[22]
Subsequently, Bayantel also filed its
petition for review, docketed as G.R.
No. 147210, assigning the following
errors:
I. THE COURT OF APPEALS
SERIOUSLY ERRED IN ITS
INTERPRETATION OF THE
PRINCIPLE OF EXHAUSTION OF
ADMINISTRATIVE REMEDIES
WHEN IT FAILED TO DISMISS
HEREIN RESPONDENTS
PETITION FOR CERTIORARI
DESPITE ITS FAILURE TO FILE
A MOTION FOR
RECONSIDERATION.
II. THE COURT OF APPEALS
SERIOUSLY ERRED IN ITS
FINDING THAT THE REVIVAL
OF NTC CASE NO. 92-486
ANCHORED ON A EX-PARTE
MOTION TO REVIVE CASE WAS
TANTAMOUNT TO GRAVE COURSE, LIBERALLY
ABUSE OF DISCRETION ON THE CONSTRUED IN PROCEEDINGS
PART OF THE NTC. BEFORE ADMINISTRATIVE
BODIES AND SHOULD GIVE
WAY TO THE GREATER
HIERARCHY OF PUBLIC
III. THE COURT OF APPEALS
WELFARE AND PUBLIC
SERIOUSLY ERRED WHEN IT
INTEREST.
DENIED THE MANDATE OF THE
NTC AS THE AGENCY OF
GOVERNMENT WITH THE SOLE
DISCRETION REGARDING VI. CONTRARY TO THE
ALLOCATION OF FREQUENCY FINDING OF THE COURT OF
BAND TO APPEALS, THE ARCHIVING OF
TELECOMMUNICATIONS BAYANTELS APPLICATION
ENTITIES. WAS NOT VIOLATIVE OF THE
SUMMARY NATURE OF THE
PROCEEDINGS IN THE NTC
UNDER SEC. 3, RULE 1 OF THE
IV. THE COURT OF APPEALS
NTC REVISED RULES OF
SERIOUSLY ERRED IN ITS
PROCEDURE.
INTERPRETATION OF THE
LEGAL PRINCIPLE THAT
JURISDICTION ONCE
ACQUIRED CANNOT BE LOST VII. THE COURT OF APPEALS
WHEN IT DECLARED THAT THE SERIOUSLY ERRED IN ITS
ARCHIVED APPLICATION FINDING THAT THE
SHOULD BE DEEMED AS A ARCHIVING OF BAYANTELS
NEW APPLICATION IN VIEW OF APPLICATION WAS VIOLATIVE
THE SUBSTANTIAL CHANGE IN OF THE ALLEGED DECLARED
THE CIRCUMSTANCES POLICY OF THE GOVERNMENT
ALLEGED IN ITS AMENDMENT ON THE TRANSPARENCY AND
APPLICATION. FAIRNESS OF
ADMINISTRATIVE PROCESS IN
THE NTC AS LAID DOWN IN
SEC 4(1) OF R.A. NO. 7925.
V. CONTRARY TO THE FINDING
OF THE COURT OF APPEALS,
THE ARCHIVING OF THE
BAYANTEL APPLICATION WAS VIII. THE COURT OF APPEALS
A VALID ACT ON THE PART OF SERIOUSLY ERRED IN ITS
THE NTC EVEN IN THE FINDING THAT THE NTC
ABSENCE OF A SPECIFIC RULE VIOLATED THE PROVISIONS OF
ON ARCHIVING OF CASES THE CONSTITUTION
SINCE RULES OF PROCEDURE PERTAINING TO DUE PROCESS
ARE, AS A MATTER OF OF LAW.
12

IX. THE COURT OF APPEALS
SERIOUSLY ERRED IN
DECLARING THAT THE MAY 3,
2000 ORDER GRANTING
BAYANTEL A PROVISIONAL
AUTHORITY SHOULD BE SET
ASIDE AND REVERSED.
i. Contrary to the finding of the
Court of Appeals, there was no
violation of the NTC Rule that the
legal, technical, financial and
economic documentations in support
of the prayer for provisional
authority should first be submitted.
ii. Contrary to the finding of the
Court of Appeals, there was no
violation of Sec. 3, Rule 15 of the
NTC Rules of Practice and
Procedure that a motion must first be
filed before a provisional authority
could be issued.
iii. Contrary to the finding of the
Court of Appeals that a plea for
provisional authority necessitates a
notice and hearing, the very rule
cited by the petitioner (Section 5,
Rule 4 of the NTC Rules of Practice
and Procedure) provides otherwise.
iv. Contrary to the finding of the
Court of Appeals, urgent public need
is not the only basis for the grant of a
provisional authority to an applicant;
v. Contrary to the finding of the
Court of Appeals, there was no
violation of the constitutional
provision on the right of the public to
information when the Common
Carrier Authorization Department
(CCAD) prepared its evaluation
report.[23]
Considering the identity of the
matters involved, this Court resolved
to consolidate the two petitions.[24]
At the outset, it is well to discuss the
nature and functions of the NTC, and
analyze its powers and authority as
well as the laws, rules and
regulations that govern its existence
and operations.
The NTC was created pursuant to
Executive Order No. 546,
promulgated on July 23, 1979. It
assumed the functions formerly
assigned to the Board of
Communications and the
Telecommunications Control
Bureau, which were both abolished
under the said Executive Order.
Previously, the NTCs functions were
merely those of the defunct Public
Service Commission (PSC), created
under Commonwealth Act No. 146,
as amended, otherwise known as the
Public Service Act, considering that
the Board of Communications was
the successor-in-interest of the PSC.
Under Executive Order No. 125-A,
issued in April 1987, the NTC
became an attached agency of the
Department of Transportation and
Communications.
In the regulatory telecommunications
industry, the NTC has the sole
authority to issue Certificates of
Public Convenience and Necessity
(CPCN) for the installation,
operation, and maintenance of
communications facilities and
services, radio communications
systems, telephone and telegraph
systems. Such power includes the
authority to determine the areas of
operations of applicants for
telecommunications services.
Specifically, Section 16 of the Public
Service Act authorizes the then PSC,
upon notice and hearing, to issue
Certificates of Public Convenience
for the operation of public services
within the Philippines whenever the
Commission finds that the operation
of the public service proposed and
the authorization to do business will
promote the public interests in a
proper and suitable manner.[25] The
procedure governing the issuance of
such authorizations is set forth in
Section 29 of the said Act, the
pertinent portion of which states:
All hearings and investigations
before the Commission shall be
governed by rules adopted by the
Commission, and in the conduct
thereof, the Commission shall not be
bound by the technical rules of legal
evidence. xxx.
In granting Bayantel the provisional
authority to operate a CMTS, the
NTC applied Rule 15, Section 3 of
its 1978 Rules of Practice and
Procedure, which provides:
Sec. 3. Provisional Relief. --- Upon
the filing of an application,
complaint or petition or at any stage
thereafter, the Board may grant on
motion of the pleader or on its own
initiative, the relief prayed for, based
on the pleading, together with the
affidavits and supporting documents
attached thereto, without prejudice to
a final decision after completion of
the hearing which shall be called
within thirty (30) days from grant of
authority asked for. (underscoring
ours)
Respondent Extelcom, however,
contends that the NTC should have
applied the Revised Rules which
were filed with the Office of the
National Administrative Register on
February 3, 1993. These Revised
Rules deleted the phrase on its own
initiative; accordingly, a provisional
authority may be issued only upon
filing of the proper motion before the
Commission.
In answer to this argument, the NTC,
through the Secretary of the
Commission, issued a certification to
the effect that inasmuch as the 1993
Revised Rules have not been
13
published in a newspaper of general
circulation, the NTC has been
applying the 1978 Rules.
The absence of publication, coupled
with the certification by the
Commissioner of the NTC stating
that the NTC was still governed by
the 1978 Rules, clearly indicate that
the 1993 Revised Rules have not
taken effect at the time of the grant
of the provisional authority to
Bayantel. The fact that the 1993
Revised Rules were filed with the
UP Law Center on February 3, 1993
is of no moment. There is nothing in
the Administrative Code of 1987
which implies that the filing of the
rules with the UP Law Center is the
operative act that gives the rules
force and effect. Book VII, Chapter
2, Section 3 thereof merely states:
Filing. --- (1) Every agency shall file
with the University of the
Philippines Law Center three (3)
certified copies of every rule adopted
by it. Rules in force on the date of
effectivity of this Code which are not
filed within three (3) months from
the date shall not thereafter be the
basis of any sanction against any
party or persons.
(2) The records officer of the agency,
or his equivalent functionary, shall
carry out the requirements of this
section under pain or disciplinary
action.
(3) A permanent register of all rules
shall be kept by the issuing agency
and shall be open to public
inspection.
The National Administrative
Register is merely a bulletin of
codified rules and it is furnished only
to the Office of the President,
Congress, all appellate courts, the
National Library, other public offices
or agencies as the Congress may
select, and to other persons at a price
sufficient to cover publication and
mailing or distribution costs.[26] In a
similar case, we held:
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 importations, 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:
Article 2. Laws shall take effect after
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. x x x
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 Taada vs. Tuvera
(G.R. No. L-63915, December 29,
1986, 146 SCRA 446) 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 power or, at
present, directly conferred by the
Constitution. Administrative Rules
and Regulations must also be
published if their purpose is to
enforce or implement existing law
pursuant also to a valid delegation.
Interpretative regulations and those
merely internal in nature, that is,
regulating only the personnel of the
administrative agency and not the
public, need not be published.
Neither is publication required of the
so-called letters of instructions
issued by administrative superiors
concerning the rules or guidelines to
be followed by their subordinates in
the performance of their duties.
xxx
We agree that the publication must
be in full or it is no publication at all
since its purpose is to inform the
public of the contents of the laws.
The Administrative Order under
consideration is one of those
issuances which should be published
for its effectivity, since its purpose is
to enforce and implement an existing
law pursuant to a valid delegation,
i.e., P.D. 1071, in relation to LOI
444 and EO 133.[27]
Thus, publication in the Official
Gazette or a newspaper of general
circulation is a condition sine qua
non before statutes, rules or
regulations can take effect. This is
explicit from Executive Order No.
200, which repealed Article 2 of the
Civil Code, and which states that:
Laws shall take effect after fifteen
days following the completion of
14
their publication either in the Official
Gazette or in a newspaper of general
circulation in the Philippines, unless
it is otherwise provided.[28]
The Rules of Practice and Procedure
of the NTC, which implements
Section 29 of the Public Service Act
(C.A. 146, as amended), fall squarely
within the scope of these laws, as
explicitly mentioned in the case
Taada v. Tuvera.[29]
Our pronouncement in Taada vs.
Tuvera is clear and categorical.
Administrative rules and regulations
must be published if their purpose is
to enforce or implement existing law
pursuant to a valid delegation. The
only exceptions are interpretative
regulations, those merely internal in
nature, or those so-called letters of
instructions issued by administrative
superiors concerning the rules and
guidelines to be followed by their
subordinates in the performance of
their duties.[30]
Hence, the 1993 Revised Rules
should be published in the Official
Gazette or in a newspaper of general
circulation before it can take effect.
Even the 1993 Revised Rules itself
mandates that said Rules shall take
effect only after their publication in a
newspaper of general circulation.[31]
In the absence of such publication,
therefore, it is the 1978 Rules that
governs.
In any event, regardless of whether
the 1978 Rules or the 1993 Revised
Rules should apply, the records show
that the amended application filed by
Bayantel in fact included a motion
for the issuance of a provisional
authority. Hence, it cannot be said
that the NTC granted the provisional
authority motu proprio. The Court of
Appeals, therefore, erred when it
found that the NTC issued its Order
of May 3, 2000 on its own initiative.
This much is acknowledged in the
Decision of the Court of Appeals:
As prayer, ICC asked for the
immediate grant of provisional
authority to construct, install,
maintain and operate the subject
service and to charge the proposed
rates and after due notice and
hearing, approve the instant
application and grant the
corresponding certificate of public
convenience and necessity.[32]
The Court of Appeals also erred
when it declared that the NTCs
Order archiving Bayantels
application was null and void. The
archiving of cases is a widely
accepted measure designed to shelve
cases in which no immediate action
is expected but where no grounds
exist for their outright dismissal,
albeit without prejudice. It saves the
petitioner or applicant from the
added trouble and expense of re-
filing a dismissed case. Under this
scheme, an inactive case is kept alive
but held in abeyance until the
situation obtains wherein action
thereon can be taken.
In the case at bar, the said
application was ordered archived
because of lack of available
frequencies at the time, and made
subject to reinstatement upon
availability of the requisite
frequency. To be sure, there was
nothing irregular in the revival of the
application after the condition
therefor was fulfilled.
While, as held by the Court of
Appeals, there are no clear
provisions in the Rules of the NTC
which expressly allow the archiving
of any application, this recourse may
be justified under Rule 1, Section 2
of the 1978 Rules, which states:
Sec. 2. Scope.--- These rules govern
pleadings, practice and procedure
before the Board of Communications
(now NTC) in all matters of hearing,
investigation and proceedings within
the jurisdiction of the Board.
However, in the broader interest of
justice and in order to best serve the
public interest, the Board may, in
any particular matter, except it from
these rules and apply such suitable
procedure to improve the service in
the transaction of the public
business. (underscoring ours)
The Court of Appeals ruled that the
NTC committed grave abuse of
discretion when it revived Bayantels
application based on an ex-parte
motion. In this regard, the pertinent
provisions of the NTC Rules:
Sec. 5. Ex-parte Motions. --- Except
for motions for provisional
authorization of proposed services
and increase of rates, ex-parte
motions shall be acted upon by the
Board only upon showing of urgent
necessity therefor and the right of the
opposing party is not substantially
impaired.[33]
Thus, in cases which do not involve
either an application for rate increase
or an application for a provisional
authority, the NTC may entertain ex-
parte motions only where there is an
urgent necessity to do so and no
rights of the opposing parties are
impaired.
The Court of Appeals ruled that there
was a violation of the fundamental
right of Extelcom to due process
when it was not afforded the
opportunity to question the motion
for the revival of the application.
However, it must be noted that said
Order referred to a simple revival of
the archived application of Bayantel
in NTC Case No. 92-426. At this
stage, it cannot be said that
Extelcoms right to procedural due
process was prejudiced. It will still
have the opportunity to be heard
15
during the full-blown adversarial
hearings that will follow. In fact, the
records show that the NTC has
scheduled several hearing dates for
this purpose, at which all interested
parties shall be allowed to register
their opposition. We have ruled that
there is no denial of due process
where full-blown adversarial
proceedings are conducted before an
administrative body.[34] With
Extelcom having fully participated in
the proceedings, and indeed, given
the opportunity to file its opposition
to the application, there was clearly
no denial of its right to due process.
In Zaldivar vs. Sandiganbayan (166
SCRA 316 [1988]), we held that the
right to be heard does not only refer
to the right to present verbal
arguments in court. A party may also
be heard through his pleadings.
where opportunity to be heard is
accorded either through oral
arguments or pleadings, there is no
denial of procedural due process. As
reiterated in National Semiconductor
(HK) Distribution, Ltd. vs. NLRC
(G.R. No. 123520, June 26, 1998),
the essence of due process is simply
an opportunity to be heard, or as
applied to administrative
proceedings, an opportunity to
explain one's side. Hence, in Navarro
III vs. Damaso (246 SCRA 260
[1995]), we held that a formal or
trial-type hearing is not at all times
and not in all instances essential.
Plainly, petitioner was not denied
due process.[35]
Extelcom had already entered its
appearance as a party and filed its
opposition to the application. It was
neither precluded nor barred from
participating in the hearings thereon.
Indeed, nothing, not even the Order
reviving the application, bars or
prevents Extelcom and the other
oppositors from participating in the
hearings and adducing evidence in
support of their respective
oppositions. The motion to revive
could not have possibly caused
prejudice to Extelcom since the
motion only sought the revival of the
application. It was merely a
preliminary step towards the
resumption of the hearings on the
application of Bayantel. The latter
will still have to prove its capability
to undertake the proposed CMTS.
Indeed, in its Order dated February
1, 2000, the NTC set several hearing
dates precisely intended for the
presentation of evidence on
Bayantels capability and
qualification. Notice of these
hearings were sent to all parties
concerned, including Extelcom.
As regards the changes in the
personal circumstances of Bayantel,
the same may be ventilated at the
hearings during Bayantels
presentation of evidence. In fact,
Extelcom was able to raise its
arguments on this matter in the
Opposition (With Motion to
Dismiss) anent the re-opening and
re-instatement of the application of
Bayantel. Extelcom was thus heard
on this particular point.
Likewise, the requirements of notice
and publication of the application is
no longer necessary inasmuch as the
application is a mere revival of an
application which has already been
published earlier. At any rate, the
records show that all of the five (5)
CMTS operators in the country were
duly notified and were allowed to
raise their respective oppositions to
Bayantels application through the
NTCs Order dated February 1, 2000.
It should be borne in mind that
among the declared national policies
under Republic Act No. 7925,
otherwise known as the Public
Telecommunications Policy Act of
the Philippines, is the healthy
competition among
telecommunications carriers, to wit:
A healthy competitive environment
shall be fostered, one in which
telecommunications carriers are free
to make business decisions and to
interact with one another in
providing telecommunications
services, with the end in view of
encouraging their financial viability
while maintaining affordable
rates.[36]
The NTC is clothed with sufficient
discretion to act on matters solely
within its competence. Clearly, the
need for a healthy competitive
environment in telecommunications
is sufficient impetus for the NTC to
consider all those applicants who are
willing to offer competition, develop
the market and provide the
environment necessary for greater
public service. This was the intention
that came to light with the issuance
of Memorandum Circular 9-3-2000,
allocating new frequency bands for
use of CMTS. This memorandum
circular enumerated the conditions
prevailing and the reasons which
necessitated its issuance as follows:
- the international accounting rates
are rapidly declining, threatening the
subsidy to the local exchange service
as mandated in EO 109 and RA
7925;
- the public telecommunications
entities which were obligated to
install, operate and maintain local
exchange network have performed
their obligations in varying degrees;
- after more than three (3) years from
the performance of the obligations
only 52% of the total number of
cities and municipalities are provided
with local telephone service.
- there are mergers and
consolidations among the existing
cellular mobile telephone service
(CMTS) providers threatening the
efficiency of competition;
16
- there is a need to hasten the
installation of local exchange lines in
unserved areas;
- there are existing CMTS operators
which are experiencing congestion in
the network resulting to low grade of
service;
- the consumers/customers shall be
given the freedom to choose CMTS
operators from which they could get
the service.[37]
Clearly spelled out is the need to
provide enhanced competition and
the requirement for more landlines
and telecommunications facilities in
unserved areas in the country. On
both scores, therefore, there was
sufficient showing that the NTC
acted well within its jurisdiction and
in pursuance of its avowed duties
when it allowed the revival of
Bayantels application.
We now come to the issue of
exhaustion of administrative
remedies. The rule is well-
entrenched that a party must exhaust
all administrative remedies before
resorting to the courts. The
premature invocation of the
intervention of the court is fatal to
ones cause of action. This rule would
not only give the administrative
agency an opportunity to decide the
matter by itself correctly, but would
also prevent the unnecessary and
premature resort to courts.[38] In the
case of Lopez v. City of Manila,[39]
we held:
As a general rule, where the law
provides for the remedies against the
action of an administrative board,
body or officer, relief to courts can
be sought only after exhausting all
remedies provided. The reason rests
upon the presumption that the
administrative body, if given the
chance to correct its mistake or error,
may amend its decision on a given
matter and decide it properly.
Therefore, where a remedy is
available within the administrative
machinery, this should be resorted to
before resort can be made to the
courts, not only to give the
administrative agency the
opportunity to decide the matter by
itself correctly, but also to prevent
unnecessary and premature resort to
courts.
Clearly, Extelcom violated the rule
on exhaustion of administrative
remedies when it went directly to the
Court of Appeals on a petition for
certiorari and prohibition from the
Order of the NTC dated May 3,
2000, without first filing a motion
for reconsideration. It is well-settled
that the filing of a motion for
reconsideration is a prerequisite to
the filing of a special civil action for
certiorari.
The general rule is that, in order to
give the lower court the opportunity
to correct itself, a motion for
reconsideration is a prerequisite to
certiorari. It also basic that petitioner
must exhaust all other available
remedies before resorting to
certiorari. This rule, however, is
subject to certain exceptions such as
any of the following: (1) the issues
raised are purely legal in nature, (2)
public interest is involved, (3)
extreme urgency is obvious or (4)
special circumstances warrant
immediate or more direct action.[40]
This case does not fall under any of
the recognized exceptions to this
rule. Although the Order of the NTC
dated May 3, 2000 granting
provisional authority to Bayantel was
immediately executory, it did not
preclude the filing of a motion for
reconsideration. Under the NTC
Rules, a party adversely affected by
a decision, order, ruling or resolution
may within fifteen (15) days file a
motion for reconsideration. That the
Order of the NTC became
immediately executory does not
mean that the remedy of filing a
motion for reconsideration is
foreclosed to the petitioner.[41]
Furthermore, Extelcom does not
enjoy the grant of any vested interest
on the right to render a public
service. The Constitution is quite
emphatic that the operation of a
public utility shall not be exclusive.
Thus:
No franchise, certificate, or any other
form of authorization for the
operation of a public utility shall be
granted to citizens of the Philippines
or to corporations organized under
the laws of the Philippines at least
sixty per centum of whose capital is
owned by such citizens, nor shall
such franchise, certificate or
authorization be exclusive in
character or for a longer period than
fifty years. Neither shall any such
franchise or right be granted except
under the condition that it shall be
subject to amendment, alteration, or
repeal by the Congress when the
common good so requires. xxx xxx
xxx.[42]
In Radio Communications of the
Phils., Inc. v. National
Telecommunications
Commission,[43] we held:
It is well within the powers of the
public respondent to authorize the
installation by the private respondent
network of radio communications
systems in Catarman, Samar and San
Jose, Mindoro. Under the
circumstances, the mere fact that the
petitioner possesses a franchise to
put up and operate a radio
communications system in certain
areas is not an insuperable obstacle
to the public respondents issuing the
proper certificate to an applicant
desiring to extend the same services
to those areas. The Constitution
mandates that a franchise cannot be
17
exclusive in nature nor can a
franchise be granted except that it
must be subject to amendment,
alteration, or even repeal by the
legislature when the common good
so requires. (Art. XII, sec. 11 of the
1986 Constitution). There is an
express provision in the petitioners
franchise which provides compliance
with the above mandate (RA 2036,
sec. 15).
Even in the provisional authority
granted to Extelcom, it is expressly
stated that such authority is not
exclusive. Thus, the Court of
Appeals erred when it gave due
course to Extelcoms petition and
ruled that it constitutes an exception
to the rule on exhaustion of
administrative remedies.
Also, the Court of Appeals erred in
annulling the Order of the NTC
dated May 3, 2000, granting
Bayantel a provisional authority to
install, operate and maintain CMTS.
The general rule is that purely
administrative and discretionary
functions may not be interfered with
by the courts. Thus, in Lacuesta v.
Herrera,[44] it was held:
xxx (T)he powers granted to the
Secretary of Agriculture and
Commerce (natural resources) by
law regarding the disposition of
public lands such as granting of
licenses, permits, leases and
contracts, or approving, rejecting,
reinstating, or canceling applications,
are all executive and administrative
in nature. It is a well recognized
principle that purely administrative
and discretionary functions may not
be interfered with by the courts.
(Coloso vs. Board of Accountancy,
G.R. No. L-5750, April 20, 1953) In
general, courts have no supervising
power over the proceedings and
actions of the administrative
departments of the government. This
is generally true with respect to acts
involving the exercise of judgement
or discretion and findings of fact. (54
Am. Jur. 558-559) xxx.
The established exception to the rule
is where the issuing authority has
gone beyond its statutory authority,
exercised unconstitutional powers or
clearly acted arbitrarily and without
regard to his duty or with grave
abuse of discretion.[45] None of
these obtains in the case at bar.
Moreover, in petitions for certiorari,
evidentiary matters or matters of fact
raised in the court below are not
proper grounds nor may such be
ruled upon in the proceedings. As
held in National Federation of Labor
v. NLRC:[46]
At the outset, it should be noted that
a petition for certiorari under Rule 65
of the Rules of Court will prosper
only if there is a showing of grave
abuse of discretion or an act without
or in excess of jurisdiction on the
part of the National Labor Relations matters are generally accorded not
Commission. It does not include an only respect but even finality and are
inquiry as to the correctness of the binding even upon the Supreme
evaluation of evidence which was Court if they are supported by
the basis of the labor official or substantial evidence.
officer in determining his
conclusion. It is not for this Court to
re-examine conflicting evidence, re-
Administrative agencies are given a
evaluate the credibility of witnesses
wide latitude in the evaluation of
nor substitute the findings of fact of
evidence and in the exercise of its
an administrative tribunal which has
adjudicative functions. This latitude
gained expertise in its special field.
includes the authority to take judicial
Considering that the findings of fact
notice of facts within its special
of the labor arbiter and the NLRC
competence.
are supported by evidence on record,
the same must be accorded due
respect and finality.
In the case at bar, we find no reason
to disturb the factual findings of the
NTC which formed the basis for
This Court has consistently held that
awarding the provisional authority to
the courts will not interfere in
Bayantel. As found by the NTC,
matters which are addressed to the
Bayantel has been granted several
sound discretion of the government
provisional and permanent
agency entrusted with the regulation
authorities before to operate various
of activities coming under the special
telecommunications services.[51]
and technical training and knowledge
Indeed, it was established that
of such agency.[47] It has also been
Bayantel was the first company to
held that the exercise of
comply with its obligation to install
administrative discretion is a policy
local exchange lines pursuant to E.O.
decision and a matter that can best be
109 and R.A. 7925. In recognition of
discharged by the government
the same, the provisional authority
agency concerned, and not by the
awarded in favor of Bayantel to
courts.[48] In Villanueva v. Court of
operate Local Exchange Services in
Appeals,[49] it was held that
Quezon City, Malabon, Valenzuela
findings of fact which are supported
and the entire Bicol region was made
by evidence and the conclusion of
permanent and a CPCN for the said
experts should not be disturbed. This
service was granted in its favor.
was reiterated in Metro Transit
Prima facie evidence was likewise
Organization, Inc. v. National Labor
found showing Bayantels legal,
Relations Commission,[50] wherein
financial and technical capacity to
it was ruled that factual findings of
undertake the proposed cellular
quasi-judicial bodies which have
mobile telephone service.
acquired expertise because their
jurisdiction is confined to specific
18
Likewise, the May 3, 2000 Order did
not violate NTC Memorandum
Circular No. 9-14-90 dated
September 4, 1990, contrary to the
ruling of the Court of Appeals. The
memorandum circular sets forth the
procedure for the issuance of
provisional authority thus:
EFFECTIVE THIS DATE, and as
part of the Commissions drive to
streamline and fast track action on
applications/petitions for CPCN
other forms of authorizations, the
Commission shall be evaluating
applications/petitions for immediate
issuance of provisional
authorizations, pending hearing and
final authorization of an application
on its merit.
For this purpose, it is hereby directed
that all applicants/petitioners seeking
for provisional authorizations, shall
submit immediately to the
Commission, either together with
their application or in a Motion all
their legal, technical, financial,
economic documentations in support
of their prayer for provisional
authorizations for evaluation. On the
basis of their completeness and their
having complied with requirements,
the Commission shall be issuing
provisional authorizations.
Clearly, a provisional authority may
be issued even pending hearing and
final determination of an application
on its merits.
Finally, this Court finds that the
Manifestations of Extelcom alleging
forum shopping on the part of the
NTC and Bayantel are not impressed
with merit. The divisions of the
Supreme Court are not to be
considered as separate and distinct
courts. The Supreme Court remains a
unit notwithstanding that it works in
divisions. Although it may have
three divisions, it is but a single
court. Actions considered in any of
these divisions and decisions
rendered therein are, in effect, by the
same Tribunal. The divisions of this
Court are not to be considered as
separate and distinct courts but as
divisions of one and the same
court.[52]
Moreover, the rules on forum
shopping should not be literally
interpreted. We have stated thus:
It is scarcely necessary to add that
Circular No. 28-91 must be so
interpreted and applied as to achieve
the purposes projected by the
Supreme Court when it promulgated
that circular. Circular No. 28-91 was
designed to serve as an instrument to
promote and facilitate the orderly
administration of justice and should
not be interpreted with such absolute
literalness as to subvert its own
ultimate and legitimate objection or
the goal of all rules of procedure
which is to achieve substantial
justice as expeditiously as
possible.[53]
WHEREFORE, in view of the
foregoing, the consolidated petitions
Even assuming that separate actions are GRANTED. The Court of
have been filed by two different Appeals Decision dated September
parties involving essentially the same 13, 2000 and Resolution dated
subject matter, no forum shopping February 9, 2001 are REVERSED
was committed as the parties did not and SET ASIDE. The permanent
resort to multiple judicial remedies. injunction issued by the Court of
The Court, therefore, directed the Appeals is LIFTED. The Orders of
consolidation of the two cases the NTC dated February 1, 2000 and
because they involve essentially the May 3, 2000 are REINSTATED. No
same issues. It would also prevent pronouncement as to costs.
the absurd situation wherein two
different divisions of the same court
would render altogether different
rulings in the cases at bar. SO ORDERED.
We rule, likewise, that the NTC has
legal standing to file and initiate
legal action in cases where it is clear
that its inaction would result in an
impairment of its ability to execute
and perform its functions. Similarly,
we have previously held in Civil
Service Commission v.
Dacoycoy[54] that the Civil Service
Commission, as an aggrieved party,
may appeal the decision of the Court
of Appeals to this Court.
As correctly stated by the NTC, the
rule invoked by Extelcom is Rule 65
of the Rules of Civil Procedure,
which provides that public
respondents shall not appear in or
file an answer or comment to the
petition or any pleading therein.[55]
The instant petition, on the other
hand, was filed under Rule 45 where
no similar proscription exists.
19

THIRD DIVISION
[G.R. No. 118882. September 26,
1996]
PEOPLE OF THE PHILIPPINES,
petitioner, vs. COURT OF
APPEALS, HON. PEDRO S.
ESPINA, CRISTETA REYES,
JOHNY SANTOS, ANTONIO
ALEGRO, ROGELIO MENGUIN,
PETE ALVERIO, ROGEN
DOCTORA and JANE GO,
respondents.
RESOLUTION
MELO, J.:
Before us is a petition for review
with an urgent prayer for a writ of
preliminary injunction and/or
restraining order which seeks to: (a)
annul and set aside the decision of
the Court of Appeals in CA-G.R. SP
No. 31733 entitled "People of the
Philippines vs. Hon. Pedro S. Espina
et al.", insofar as it denied the
People's prayer to inhibit respondent
Judge Pedro S. Espina of the
Regional Trial Court of Tacloban
City from hearing Criminal Cases
No. 93-01-38 & 9301-39,
respectively, entitled "People of the
Philippines vs. Cristeta Reyes, et al."
and "People of the Philippines vs.
Jane C. Go"; and b) enjoin
respondent judge from conducting
further proceedings in the aforesaid
criminal cases.
Acting on the said petition, the Court
on April 3, 1995 resolved to require
respondents all of whom are the
accused in the aforesaid criminal
cases, to comment thereon within 10
days from notice, to issue the
temporary restraining order prayed
for, and to enjoin respondent judge
from taking further action in
Criminal Cases No. 93-01-38 & 93-
01-39 until further orders from the
Court.
It appearing that private respondents
Cristeta Reyes & Rogen Doctora,
Johny Santos & Antonio Alegro &
Jane C. Go failed to file their
respective comments within the
period which expired on April 17,
1995 and April 18, 1995,
respectively, the Court on June 26,
1995 resolved to require said private
respondents to show cause why they
should not be disciplinary dealt with
for such failure, and to file the
required comments, both within ten
(10) days from notice.
As to respondents Johny Santos &
Antonio Alegro (prisoners at the
Tacloban City Jail), copies of the
resolution requiring them to file
comment were returned unserved
with the postmaster's notation
"unknown in said address". The
Court, on October 11, 1995 directed
the Solicitor General to serve the
same on said respondents and to
inform the Court of such service,
both within ten (10) days from
notice.
The Office of the Solicitor General
filed a Compliance stating that the
required copies were sent to private
respondents Santos & Alegro
through ordinary mail on December
26, 1995.
To date, all the respondents have not
yet filed their comments, for verily,
delay in the submission of the same
would appear to benefit respondents,
and sanction against them may not
really amount to much, considering
that most of them are under
detention. Thus, so as not to unduly
delay the disposition of Criminal
Cases No. 93-01-38 and 93-01-39,
we now resolve to dispense with
respondent's comments and to
proceed with the disposition of the
petition.
One of the essential requirements of
procedural due process in a judicial
proceeding is that there must be an
impartial court or tribunal clothed
with judicial power to hear and
determine the matter before it. Thus,
every litigant, including the State, is
entitled to the cold neutrality of an
impartial judge which was explained
in Javier vs. Commission of
Elections (144 SCRA 194 [1986]), in
the following words:
This Court has repeatedly and
consistently demanded "the cold
neutrality of an impartial judge" as
the indispensable imperative of due
process. To bolster that requirement,
we have held that the judge must not
only be impartial but must also
appear to be impartial as an added
assurance to the parties that his
decision will be just. The litigants
are entitled to no less than that. They
should be sure that when their rights
are violated they can go to a judge
who shall give them justice. They
must trust the judge, otherwise they
will not go to him at all. They must
believe in his sense of fairness,
otherwise they will not seek his
judgment. Without such confidence,
there would be no point in invoking
his action for the justice they expect.
Due process is intended to insure that
confidence by requiring compliance
with what Justice Frankfurter calls
the rudiments of fair play. Fair play
calls for equal justice. There cannot
be equal justice where a suitor
approaches a court already
committed to the other party and
with a judgment already made and
waiting only to be formalized after
the litigants shall have undergone the
charade of a formal hearing. Judicial
(and also extrajudicial) proceedings
are not orchestrated plays in which
the parties are supposed to make the
motions and reach the denoucement
according to a prepared script. There
20
is no writer to foreordain the ending.
The Judge will reach his conclusions
only after all the evidence is in and
all the arguments are filed, on the
basis of the established facts and the
pertinent law.
In the case at bar, Judge Pedro
Espina, as correctly pointed out by
the Solicitor General, can not be
considered to adequately possess
such cold neutrality of an impartial
judge as to fairly assess both the
evidence to be adduced by the
prosecution and the defense in view
of his previous decision in Special
Civil Action No. 92-11-219 wherein
he enjoined the preliminary
investigation at the Regional State
Prosecutor's Office level against
herein respondent Jane Go, the
principal accused in the killing of her
husband Dominador Go.
Judge Espina's decision in favor of
respondent Jane Go serves as
sufficient and reasonable basis for
the prosecution to seriously doubt his
impartiality in handling the criminal
cases. Verily, it would have been
more prudent for Judge Espina to
have voluntarily inhibited himself
from hearing the criminal cases.
WHEREFORE, the petition is
hereby GRANTED. The decision of
the Court of Appeals in CA-G.R. No.
31733 is hereby SET ASIDE and
The Honorable Pedro Espina,
Presiding Judge of Branch 7 of the
Regional Trial Court of the 8th
Judicial Region stationed in
Tacloban is hereby declared
disqualified from taking cognizance
of Criminal Cases No. 93-01-38 and
93-01-39. It is further ordered that
these criminal cases be re-raffled to
another branch of the Regional Trial
Court of Tacloban City.
SO ORDERED.
SECOND DIVISION
G.R. No. 121234 August 23, 1995 PABLO FORMARAN, and
NATIONAL BUREAU OF
INVESTIGATION, and
HONORABLE AMELITA G.
HUBERT J. P. WEBB, petitioner,
TOLENTINO, the Presiding Judge
vs. of the Regional Trial Court of
Parañaque, Branch 274, respondents.
HONORABLE RAUL E. DE LEON,
the Presiding Judge of the Regional
Trial Court of Parañaque, Branch
G.R. No. 121297 August 23, 1995
258, HONORABLE ZOSIMO V.
ESCANO, the Presiding Judge of the
Regional Trial Court of Parañaque,
Branch 259, PEOPLE OF THE ANTONIO L. LEJANO, petitioner,
PHILIPPINES, ZENON L. DE
vs.
GUIA, JOVENCITO ZUÑO,
LEONARDO GUIYAB, JR.,
HONORABLE RAUL E. DE LEON,
ROBERTO LAO, PABLO
the Presiding Judge of the Regional
FORMARAN, and NATIONAL
Trial Court of Parañaque, Branch
BUREAU OF INVESTIGATION,
258, HONORABLE ZOSIMO V.
and HONORABLE AMELITA G.
ESCANO, the Presiding Judge of the
TOLENTINO, the Presiding Judge
Regional Trial Court of Parañaque,
of the Regional Trial Court of
Branch 259, PEOPLE OF THE
Parañaque, Branch 274, respondents,
PHILIPPINES, ZENON L. DE
LAURO VIZCONDE, intervenor.
GUIA, JOVENCITO ZUÑO,
LEONARDO GUIYAB, JR.,
ROBERTO LAO, PABLO
G.R. No. 121245 August 23, 1995 FORMARAN, and NATIONAL
BUREAU OF INVESTIGATION,
and HONORABLE AMELITA G.
TOLENTINO, the Presiding Judge
MICHAEL A. GATCHALIAN,
of the Regional Trial Court of
petitioner,
Parañaque, Branch 274, respondents.
vs.
HONORABLE RAUL E. DE LEON,
the Presiding Judge of the Regional
Trial Court of Parañaque, Branch PUNO, J.:
258, HONORABLE ZOSIMO V.
ESCANO, the Presiding Judge of the
Regional Trial Court of Parañaque,
Branch 259, PEOPLE OF THE Before the Court are petitions for the
PHILIPPINES, ZENON L. DE issuance of the extraordinary writs of
GUIYAB, JR., ROBERTO LAO, certiorari, prohibition and mandamus
21
with application for temporary
restraining order and preliminary
injunction to: (1) annul and set aside
the Warrants of Arrest issued against
petitioners by respondent Judges
Raul E. de Leon and Amelita
Tolentino in Criminal Case No. 95-
404; (2) enjoin the respondents from
conducting any proceeding in the
aforementioned criminal case; and
(3) dismiss said criminal case or
include Jessica Alfaro as one of the
accused therein.1
From the records of the case, it
appears that on June 19, 1994, the
National Bureau of Investigation
(NBI) filed with the Department of
Justice a letter-complaint charging
petitioners Hubert Webb, Michael
Gatchalian, Antonio J. Lejano and
six (6) other persons,2 with the crime
of Rape with Homicide. Forthwith,
the Department of Justice formed a
panel of prosecutors headed by
Assistant Chief State Prosecutor
Jovencio R. Zuño to conduct the
preliminary investigation3 of those
charged with the rape and killing on
June 30, 1991 of Carmela N.
Vizconde;4 her mother Estrellita
Nicolas-Vizconde,5 and her sister
Anne Marie Jennifer6 in their home
at Number 80 W. Vinzons, St., BF
Homes, Parañaque, Metro Manila.
During the preliminary investigation,
the NBI presented the following: (1)
the sworn statement dated May 22,
1995 of their principal witness,
Maria Jessica M. Alfaro who
allegedly saw the commission of the
crime;7 (2) the sworn statements of
two (2) of the former housemaids of
the Webb family in the persons of
Nerissa E. Rosales and Mila S.
Gaviola;8 (3) the sworn-statement of
Carlos J. Cristobal who alleged that
on March 9, 1991 he was a passenger
of United Airlines Flight No. 808
bound for New York and who
expressed doubt on whether
petitioner Webb was his co-
passenger in the trip; (4) the sworn
statement of Lolita Birrer, a former
live-in partner of Gerardo Biong,
who narrated the manner of how
Biong investigated and tried to cover
up the crime at bar;9 (5) the sworn
statements of Belen Dometita and
Teofilo Minoza, two of the Vizconde
maids, and the sworn statements of
Normal White, a security guard and
Manciano Gatmaitan, an engineer.
The autopsy reports of the victims
were also submitted and they showed
that Carmela had nine (9) stab
wounds, Estrellita twelve (12) and
Jennifer nineteen (19).10 The genital
examination of Carmela confirmed
the presence of spermatozoa.11
Before submitting his counter-
affidavit, petitioner Webb filed with
the DOJ Panel a Motion for
Production And Examination of
Evidence and Documents for the
NBI to produce the following:
(a) Certification issued by the
U.S. Federal Bureau of Investigation
on the admission to and stay of
Hubert Webb in the United States
from March 9, 1991 to October 22,
1992;
(b) Laboratory Report No. SN-
91-17 of the Medico Legal Officer,
Dr. Prospero A. Cabanayan, M.D.;
(c) Sworn Statements of
Gerardo C. Biong (other than his
Sworn Statement dated October 7,
1991);
(d) Photographs of fingerprints
lifted from the Vizconde residence
taken during the investigation;
(e) Investigation records of
NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135
suspects/persons investigated by the
NBI per Progress Report dated
September 2, 1991 submitted by
Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest,
interview, investigation and other
written statements of Jessica Alfaro
(other than the May 22, 1995 Sworn
Statement) conducted by the NBI
and other police agencies;
(h) transmittal letter to the
NBI, including the report of the
investigation conducted by
Superintendent Rodolfo C. Sison,
Regional Deputy Director, NCRC;
(i) The names of NBI
officials/agents composing the Task
Force Jecares, including their
respective positions and duties;
(j) Statements made by other
persons in connection with the crime
charged.
The motion was granted by the DOJ
Panel and the NBI submitted
photocopies of the documents. It
alleged it lost the original of the
April 28, 1995 sworn statement of
Alfaro. This compelled petitioner
Webb to file Civil Case No. 951099
in the Regional Trial Court (RTC) of
Makati, Br. 63, for the purpose,
among others, of obtaining the
original of said sworn statement. He
succeeded, for in the course of its
proceedings, Atty. Arturo L.
Mercader, Jr., produced a copy of
said original in compliance with a
subpoena duces tecum. The original
was then submitted by petitioner
Webb to the DOJ Panel together with
his other evidence. It appears,
however, that petitioner Webb failed
to obtain from the NBI the copy of
the Federal Bureau of Investigation
(FBI) Report despite his request for
its production.
22
Petitioner Webb claimed during the
preliminary investigation that he did
not commit the crime at bar as he
went to the United States on March
1, 1991 and returned to the
Philippines on October 27, 1992. 12
His alibi was corroborated by
Honesto Aragon, Lecinia
Edrosolano, Sylvia Climaco, Gina
Roque, Sonia Rodriguez, Edgardo
Venture and Pamela Francisco.13 To
further support his defense, he
submitted documentary evidence that
he bought a bicycle and a 1986
Toyota car while in the United States
on said dates14 and that he was
issued by the State of California
Driver's License No. A8818707 on
June 14, 1991.15 Petitioner Webb
likewise submitted the letter dated
July 25, 1995 of Mr. Robert Heafner,
Legal Attache of the US Embassy,
citing certain records tending to
confirm, among others, his arrival at
San Francisco, California on March
9, 1991 as a passenger in United
Airlines Flight No. 808.
The other respondents — Hospicio
"Pyke" Fernandez, Michael
Gatchalian, Antonio "Tony Boy"
Lejano, Peter Estrada, Miguel
Rodriguez and Gerardo Biong —
submitted sworn statements,
responses, and a motion to dismiss
denying their complicity in the rape-
killing of the Vizcondes.16 Only the
respondents Joey Filart and Artemio
"Dong" Ventura failed to file their
counter-affidavits though they were
served with subpoena in their last
known address.17 In his sworn
statement, petitioner Gatchalian
alleged that from 11 o'clock in the
evening of June 29, 1991 until 3
o'clock in the morning of the
following day, he was at the
residence of his friends, Carlos and
Andrew Syyap, at New Alabang
Village, Muntinlupa watching video
tapes. He claimed that his co-
petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel
issued a 26-page Resolution "finding
probable cause to hold respondents
for trial" and recommending that an
Information for rape with homicide
be filed against petitioners and their
co-respondents,18 On the same date,
it filed the corresponding
Information19 against petitioners
and their co-accused with the
Regional Trial Court of Parañaque.
The case was docketed as Criminal
Case No. 95-404 and raffled to
Branch 258 presided by respondent
judge Zosimo V. Escano. It was,
however, the respondent judge Raul
de Leon, pairing judge of Judge
Escano, who issued the warrants of
arrest against the petitioners. On
August 11, 1995, Judge Escano
voluntarily inhibited himself from
the case to avoid any suspicion about
his impartiality considering his
employment with the NBI before his
appointment to the bench. The case
was re-raffled to Branch 274,
presided by Judge Amelita Tolentino
who issued new warrants of arrest
against the petitioners and their co-
accused. On August 11, 1995,
petitioner Webb voluntarily
surrendered to the police authorities
at Camp Ricardo Papa Sr., in
Bicutan, Taguig. Petitioners
Gatchalian and Lejano likewise gave
themselves up to the authorities after
filing their petitions before us.
In their petitions at bar, petitioners
contend: (1) respondent Judges de
Leon and Tolentino gravely abused
their discretion when they failed to
conduct a preliminary examination
before issuing warrants of arrest
against them: (2) the DOJ Panel
likewise gravely abused its discretion
in holding that there is probable
cause to charge them with the crime
of rape with homicide; (3) the DOJ
Panel denied them their
constitutional right to due process
during their preliminary
investigation; and (4) the DOJ Panel
unlawfully intruded into judicial
prerogative when it failed to charge
Jessica Alfaro in the Information as
an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its
finding of probable cause. They
insist that the May 22, 1995 sworn
statement of Jessica Alfaro is
inherently weak and uncorroborated.
They hammer on alleged material
inconsistencies between her April
28, 1995 and May 22, 1995 sworn
statements. They assail her
credibility for her misdescription of
petitioner Webb's hair as semi-
blonde. They also criticize the
procedure followed by the DOJ
Panel when it did not examine
witnesses to clarify the alleged
incredulities and inconsistencies in
the sworn statements of the
witnesses for the NBI.
We start with a restatement of the
purpose of a preliminary
investigation. Section 1 of Rule 112
provides that a preliminary
investigation should determine " . . .
whether there is a sufficient ground
to engender a well-grounded belief
that a crime cognizable by the
Regional Trial Court has been
committed and that the respondent is
probably guilty thereof, and should
be held for trial." Section 3 of the
same Rule outlines the procedure in
conducting a preliminary
investigation, thus:
Sec. 3. Procedure. — Except as
provided for in Section 7 hereof, no
complaint or information for an
offense cognizable by the Regional
Trial Court shall be filed without a
preliminary investigation having
been first conducted in the following
manner:
(a) The complaint shall state
the known address of the respondent
and be accompanied by affidavits of
the complainant and his witnesses as
well as other supporting documents,
in such number of copies as there are
23
respondents, plus two (2) copies for
the official file. The said affidavits
shall be sworn to before any fiscal,
state prosecutor or government
official authorized to administer
oath, or, in their absence or
unavailability, a notary public, who
must certify that he personally
examined the affiants and that he is
satisfied that they voluntarily
executed and understood their
affidavits.
(b) Within ten (10) days after
the filing of the complaint, the
investigating officer shall either
dismiss the same if he finds no
ground to continue with the inquiry,
or issue a subpoena to the
respondent, attaching thereto a copy
of the complaint, affidavits and other
supporting documents. Within ten
(10) days from receipt thereof, the
respondent shall submit counter-
affidavits and other supporting
documents. He shall have the right to
examine all other evidence submitted
by the complainant.
(c) Such counter-affidavits
and other supporting evidence
submitted by the respondent shall
also be sworn to and certified as
prescribed in paragraph (a) hereof
and copies thereof shall be furnished
by him to the complainant.
(d) If the respondent cannot be
subpoenaed, or if subpoenaed, does
not submit counter-affidavits within
the ten (10) day period, the
investigating officer shall base his
resolution on the evidence presented
by the complainant.
(e) If the investigating officer
believes that there are matters to be
clarified, he may set a hearing to
propound clarificatory questions to
the parties or their witnesses, during
which the parties shall be afforded an
opportunity to be present but without
the right to examine or cross-
examine. If the parties so desire, they
may submit questions to the
investigating officer which the latter
may propound to the parties or
witnesses concerned.
(f) Thereafter, the
investigation shall be deemed
concluded, and the investigating
officer shall resolve the case within
ten (10) days therefrom. Upon the
evidence thus adduced, the
investigating officer shall determine
whether or not there is sufficient
ground to hold the respondent for
trial.
Section 4 of Rule 112 then directs
that "if the investigating fiscal finds
cause to hold the respondent for trial,
he shall prepare the resolution and
corresponding information. He shall
certify under oath that he, or as
shown by the record, an authorized
officer, has personally examined the
complainant and his witnesses, that
there is reasonable ground to believe
that a crime has been committed and Applying these basic norms, we are
that the accused is probably guilty not prepared to rule that the DOJ
thereof . . ." Panel gravely abused its discretion
when it found probable cause against
the petitioners. Petitioners belittle the
truthfulness of Alfaro on two (2)
The need to find probable cause is
grounds: (a) she allegedly
dictated by the Bill of Rights which
erroneously described petitioner
protects "the right of the people to be
Webb's hair as semi-blond and (b)
secure in their persons . . . against
she committed material
unreasonable searches and seizures
inconsistencies in her two (2) sworn
of whatever nature . . ."20 An arrest
statement, thus:26
without a probable cause is an
unreasonable seizure of a person, and
violates the privacy of persons which
ought not to be intruded by the xxx xxx xxx
State.21 Probable cause to warrant
arrest is not an opaque concept in our
jurisdiction. Continuing accretions of
To illustrate, the following are some
case law reiterate that they are facts
examples of inconsistencies in the
and circumstances which would lead
two sworn statements of Alfaro:
a reasonably discreet and prudent
man to believe that an offense has
been committed by the person sought
to be arrested.22 Other jurisdictions On whether Alfaro knew Carmela
utilize the term man of reasonable before the incident in question
caution 23 or the term ordinarily
prudent and cautious man.24 The
terms are legally synonymous and
First Affidavit: She had NOT
their reference is not to a person with
met Carmela before June 29, 1991.
training in the law such as a
prosecutor or a judge but to the
average man on the street.25 It ought
to be emphasized that in determining Second Affidavit: "I met her in a
probable cause, the average man party sometime in February, 1991."
weighs facts and circumstances
without resorting to the calibrations
of our technical rules of evidence of
On whether Alfaro saw the dead
which his knowledge is nil. Rather,
bodies
he relies on the calculus of common
sense of which all reasonable men
have an abundance.
First Affidavit: She did not see
the three dead persons on that night.
She just said "on the following day I
24
read in the newspaper that there were
three persons who were killed . . ."
Second Affidavit: "I peeped
through the first door on the left. I
saw two bodies on top of the bed,
bloodied, and in the floor, I saw
Hubert on top of Carmela."
On the alleged rape of Carmela
Vizconde
First Affidavit: She did not see
the act of rape.
Second Affidavit: She saw Hubert
Webb "with bare buttocks, on top of
Carmela and pumping, her mouth
gagged and she was moaning and I
saw tears on her eyes."
On how Webb, Lejano, and Ventura
entered the Vizconde house
First Affidavit: "by jumping
over the fence, which was only a
little more than a meter high."
Second Affidavit: They "entered
the gate which was already open."
On whether Alfaro entered the
Vizconde house
First Affidavit: She never
entered the house.
Second Affidavit: "I proceeded to
the iron grill gate leading to the dirty
kitchen."
In its Resolution, the DOJ Panel
ruled that these alleged
misdescription and inconsistencies
did not erode the credibility of
Alfaro. We quote the pertinent
ruling, viz.:27
xxx xxx xxx
As regards the admissibility of
Alfaro's statements, granting for
purposes of argument merely that
she is a co-conspirator, it is well to
note that confessions of a co-
conspirator may be taken as evidence
to show the probability of the co-
conspirator's participation in the
commission of the crime (see People
vs. Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established
doctrine that conspiracy need not be
proved by direct evidence of prior
agreement to commit the crime.
Indeed, "only rarely would such a
prior agreement be demonstrable and to check on our U.S.-based
since, in the nature of things, witnesses."
criminal undertakings are only rarely
documented by agreements in
writing. Thus, conspiracy may be
In said memorandum, counsel for
inferred from the conduct of the
respondent Webb calls for the
accused before, during and after the
application of the maxim falsus in
commission of the crime, showing
uno, falsus in omnibus arising from
that the several accused had acted in
the inconsistencies of Alfaro's
concert or in unison with each other,
statements, among others. This is
evincing a common purpose or
untenable. As held in Angelo:
design." (Angelo vs. Court of
Appeals, 210 SCRA 402 [1992],
citations omitted; People vs.
Molleda, 86 SCRA 699). There is no rule of law which
prohibits a court from crediting part
of the testimony of a witness as
worthy of belief and from
Neither can we discredit Alfaro
simultaneously rejecting other parts
merely because of the
which the court may find incredible
inconsistencies in her two sworn
or dubious. The maxim falsus in uno,
statements. In Angelo, the Court
falsus in omnibus is not a rule of
refused to discredit the testimony of
law, let alone a general rule of law
a witness accusing therein petitioner
which is universally applicable. It is
for the slaying of one Gaviano
not a legal presumption either. It is
Samaniego even though said witness
merely a latinism describing the
failed to name Angelo in his affidavit
conclusion reached by a court in a
which was executed five (5) months
particular case after ascribing to the
earlier. Granting, the Court
evidence such weight or lack of
continued, that a part of the witness'
weight that the court deemed proper.
testimony is untrue, such
circumstance is not sufficient to
discredit the entire testimony of the
witness. In the case before us, complainant
reasoned out that Alfaro was then
having reservations when she first
executed the first statement and held
On August 7, 1995, another counsel
back vital information due to her
for respondent Webb submitted his
natural reaction of mistrust. This
memorandum suggesting that the
being so, the panel believes that the
instant complaint "should not be
inconsistencies in Alfaro's two sworn
decided within the month to give
statements have been sufficiently
time to the NBI to coordinate with
explained especially specially so
the FBI on the latter's inquiry into
where there is no showing that the
the whereabouts of Hubert Webb . . .
inconsistencies were deliberately
25
made to distort the truth.
Consequently, the probative value of
Alfaro's testimony deserves full faith
and credit. As it has been often
noted, ex parte statements are
generally incomplete because they
are usually executed when the
affiant's state of mind does not give
her sufficient and fair opportunity to
comprehend the import of her
statement and to narrate in full the
incidents which transpired (People
vs. Sarellana, 233 SCRA 31 [1994];
Angelo vs. Court of Appeals, supra).
In the case at bar, there is no dispute
that a crime has been committed and
what is clear before us is that the
totality of the evidence submitted by
the complainant indicate a prima
facie case that respondents conspired
in the perpetration of the imputed
offense.
We note that the May 22, 1995
sworn statement of Alfaro was given
with the assistance of counsel28 and
consists of six (6) pages, in single
space reciting in rich details how the
crime was planned and then executed
by the petitioners. In addition, the
DOJ Panel evaluated the supporting
sworn statements of Nerissa Rosales
and Mila Gaviola, former
housemaids of the Webbs, Carlos J.
Cristobal, a passenger in United
Airlines Flight No. 808 and Lolita
Birrer, a paramour of Gerardo Biong.
The Panel assayed their statements
as follows:29
xxx xxx xxx
According to Nerissa E. Rosales, a
former housemaid of the Webb
family, on June 29, 1991, between
7:00 o'clock and 8:00 o'clock in the
evening, Hubert was at home inside
his room with two male visitors. She
knew it because she and her co-
housemaid, Loany, were instructed
by Hubert to bring them three glasses
of juice. It was the last time she saw
Hubert and was later told by then
Congressman Webb that Hubert was
in the United States.
While Mila S. Gaviola, another
former housemaid of the Webb
family and who served as a laundry
woman, claims, aside from
corroborating the statement of
Nerissa Rosales, that on June 30,
1991, she woke up at around 4:00 in
the morning and as what she used to
do, she entered the rooms of the
Webbs to get their clothes to be
washed. As a matter of fact, in that
early morning, she entered Hubert's
room and saw Hubert, who was only
wearing his pants, already awake and
smoking while he was sitting on his
bed. She picked up Hubert's
scattered clothes and brought them
together with the clothes of the other
members of the family to the laundry
area. After taking her breakfast, she
began washing the clothes of the
Webbs. As she was washing the
clothes of Hubert Webb, she noticed
fresh bloodstains in his shirt. After
she finished the laundry, she went to
the servant's quarters. But feeling
uneasy, she decided to go up to the
stockroom near Hubert's room to see
what he was doing. In the said
stockroom, there is a small door
going to Hubert's room and in that
door there is a small opening where
she used to see Hubert and his
friends sniffing on something. She
observed Hubert was quite irritated,
uneasy, and walked to and from
inside his room.
On that day, she noticed Hubert left
the house at around 1:00 in the
afternoon and came back at around
4:00 in the same afternoon and went
inside his room using the secret door
of the house. It was the last time that
she saw Hubert until she left the
Webb family.
On the other hand, Carlos J.
Cristobal alleged that on March 9,
1991, at about 10:00 in the morning,
he was at the Ninoy Aquino
International Airport as he was then
scheduled to take the United Airlines
Flight No. 808 at 2:00 in the
afternoon for New York. At the
airport's lobby, he saw then
Congressman Freddie Webb with a
male companion. He greeted him and
Webb answered: "Mabuti naman, at
ito, ihahatid ko ang anak ko
papuntang Florida." He knew
Freddie Webb because he often
watched him then in a television
show "Chicks to Chicks." He
observed that the man whom Freddie
Webb referred to as his son, was of
the same height as Freddie. The son
referred to has fair complexion with
no distinguishing marks on his face.
He (son of Webb) was then wearing
a striped white jacket. When he and
his children were already inside the
plane, he did not see Freddie
anymore, but he noticed his son was
seated at the front portion of the
economy class. He never noticed
Freddie Webb's son upon their
arrival in San Francisco. He claims
that, while watching the television
program "DONG PUNO LIVE"
lately, he saw the wife of Freddie
Webb with her lawyer being
interviewed, and when she described
Hubert as "moreno" and small built,
with a height of five feet and seven
inches tall, and who was the one who
left for United States on March 9,
1991, he nurtured doubts because
such description does not fit the
physical traits of the son of Freddie,
who left with him for United States
on the same flight and date.
Lolita Birrer, alleged that she know
Gerardo Biong because she had an
affair with him for almost three (3)
years and in fact, she had a child
with him who is now four (4) years
old. Their relationship started in
February, 1991 until she broke up
with him in September 1993. She
recalls that on June 29, 1991, at
around 6:00 p.m., Biong invited her
to play mahjong at the canteen of a
certain Aling Glo located at the back
of the Parañaque Municipal Hall.
At about 2:30, in the early morning
of January 30, 1991, the radio
operator of the Parañaque police told
Biong that he has a phone call.
26
Before Biong went to the radio
room, she was instructed to take him
over and after somebody won the
game, she followed Biong at the
radio room where she overheard him
uttering, "Ano?, Saan? Mahirap yan,
Paano, o sige, aantayin kita, O ano?,
dilaw na taxi, o sige." When he put
the phone down, Biong told her,
"Mayroon lang akong
rerespondehan, ikaw muna ang
maupo" and then, he went outside
the canteen apparently waiting for
somebody. Twenty minutes later, a
taxi, colored yellow, arrived with a
male passenger sitting at the
backseat and parked near the
canteen. After it made some signals
by blinking its headlight, Biong rode
thereat at the front seat beside the
driver and then, they left. She was
not able to recognize the male
passenger because the window of the
taxi was tinted. Biong came back at
around 7:00 of the same morning and
when he arrived, he immediately
washed his hands and face, and took
his handkerchief from his pocket
which he threw at the trash can. She
asked him why he threw his
handkerchief and he answered,
"Hmp . . . amoy tae." She inquired
what happened in BF Homes and he
replied, "Putang inang mga batang
iyon, pinahirapan nila ako."
Biong later invited her for breakfast,
but they first went to his office
where she observed him doing
something in his steel cabinet while
he appeared to be uneasy. Moments
later, Galvan, another policeman of
Parañaque, arrived and said, "Oy
Biong, may tatlong patay sa BF,
imbestigahan mo" to which Biong
answered, "Oo susunod na ako."
Biong went to the office of Capt.
Don Bartolome who offered to
accompany him and with whom she
asked permission to go with them.
Before they proceeded to the place
where the killings happened, she
asked Biong if he knew the exact
address and the latter immediately
responded, "Alam ko na yon." She
was surprised because Galvan never
told him the place of the incident.
As soon as they arrived at the
Vizconde's residence, Biong
instructed the housemaids to contact
the victim's relatives, while the
security guard fetched the barangay
chairman and the president of the
Homeowners Association. When all
these persons were already in the
house, Biong started recording the
wounds of the victim. Inside the
master's bedroom, she saw Biong
took a watch from the jewelry box.
Because she could not tolerate the
foul odor, she and Capt. Bartolome
went out of the room and proceeded
to the dining area. On top of the
dining table, she saw the scattered
contents of a shoulder bag. Moments
later, Biong came out from the room
and proceeded to the front door to
remove the chain lock; asked the
keys from the housemaid and it was
only then that the main door was
opened. Biong noticed a stone in
front of the broken glass of the door
and requested Capt. Bartolome to go
inside the servant's quarters as he
doubted the housemaids' claim that
they heard nothing unusual. Using
the handle of his gun, Biong broke
the remaining glass of the door
panel. Bartolome then came out of
the room and told Biong that he can
hear the sound of the glass being
broken. At the garage, Biong also
noticed same marks on the hood of
the car.
On the following day, at around
12:00 noon, Biong arrived in her
house together with the Vizconde
housemaids. When Biong was
preparing to take a bath, she saw him
remove from his pocket the things
she also saw from Vizconde's
residence, to wit: calling cards,
driver's license, ATM card, a crossed
check worth P80,000.00, earrings, a
ring, bracelet, necklace, and the
watch he took from the jewelry box
inside the room of the Vizcondes.
These jewelry items were later
pawned by Biong for P20,000.00 at a
pawnshop in front of Chow-Chow
restaurant in Santos Avenue,
Parañaque. The next day, she saw
Biong took from his locker at the
Parañaque Police Station an
imported brown leather jacket, which
the latter claimed to have been given
to him by the person who called him
up in the early morning of June 30,
1991.
Since then, Biong has been wearing
said jacket until they broke up
sometime in 1993. She observed that
Biong seemed not interested in
pursuing the investigation of the
Vizconde case. In fact, when Biong
and this group picked up Mike
Gatchalian and brought him to the
Parañaque Police Station, she was
surprised that Biong halted the
investigation when Gatchalian was
profusely sweating while being
interrogated. After the father of
Gatchalian talked to Colonel Pureza,
the latter called up and instructed
Biong to bring Gatchalian to him
(Colonel Pureza) and that was the
last thing she remembered regarding
this case.
The DOJ Panel then weighed these
inculpatory evidence against the
exculpatory evidence of petitioners.
It ruled: 30
xxx xxx xxx
The voluminous number of exhibits
submitted by respondent Webb to
support his defense of denial and
alibi notwithstanding, the panel, after
a careful and thorough evaluation of
the records, believes that they cannot
outweigh the evidence submitted by
the complainant. Alibi cannot prevail
over the positive identification made
by a prosecution witness. Verily,
alibi deserves scant consideration in
the face of positive identification
especially so where the claim of alibi
is supported mainly by friends and
relatives (People vs. Apolonia, 235
SCRA 124 [1994]; People vs. Lucas,
181 SCRA 316 and a long line of
cases).
27

Similarly, denial is a self-serving
negative which cannot be given
greater evidentiary weight than the
declaration of a credible witness who
testified on affirmative matters
(People vs. Carizo, 233 SCRA 687
[1994]). Indeed, denial, like alibi, is
weak and becomes even more
weaker when arrayed against the
positive identification by the witness
for the prosecution (People vs.
Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of
alibi was not corroborated by Lejano,
whom he claimed was with him
watching video tapes at the Syyap
residence. Other than claiming that
he "was not and could not have been
at or near the area of the Vizconde
residence at the time of the alleged
commission of the crime,"
respondent Lejano proffered no
evidence to substantiate his claim of
alibi.
xxx xxx xxx
On the other hand, respondent Webb
seeks to enhance the acceptability of
his alibi in the form of documents
tending to show that he was
thousands of miles away when the
incident occurred. We have carefully
deliberated and argued on the
evidence submitted by respondent
Webb in support of his absence from
the country since March 9, 1991 to
October 26, 1992 and found the
same wanting to exonerate him of
the offense charged. The material
dates in this case are June 29 and 30,
1991. While respondent Webb may
have submitted proof tending to
show that he was issued a California
driver's license on June 14, 1991,
there is no showing that he could not
have been in the country on the dates
above mentioned. Neither do we find
merit in the allegation that
respondent Webb personally bought
a bicycle on June 30, 1991 in
California in view of his positive
identification by Alfaro and the two
(2) househelps of the Webb family
who testified that he was here in the
country on said dates. Additionally,
the issuance of receipt evidencing
the purchase of a bicycle in
California is no conclusive proof that
the name appearing thereon was the
actual buyer of the merchandise.
Given these conflicting pieces of
evidence of the NBI and the
petitioners, we hold that the DOJ
Panel did not gravely abuse its
discretion when it found probable
cause against the petitioners. A
finding of probable cause needs only
to rest on evidence showing that
more likely than not a crime has
been committed and was committed
by the suspects. Probable cause need
not be based on clear and convincing
evidence of guilt, neither on
evidence establishing guilt beyond
reasonable doubt and definitely, not
on evidence establishing absolute
certainty of guilt. As well put in
Brinegar v. United States,31 while
probable cause demands more than
"bare suspicion," it requires "less
than evidence which would justify . .
. conviction." A finding of probable
cause merely binds over the suspect
to stand trial. It is not a
pronouncement of guilt.
Considering the low quantum and
quality of evidence needed to
support a finding of probable cause,
we also hold that the DOJ Panel did
not, gravely abuse its discretion in
refusing to call the NBI witnesses for
clarificatory questions. The decision
to call witnesses for clarificatory
questions is addressed to the sound
discretion of the investigator and the
investigator alone. If the evidence on
hand already yields a probable cause,
the investigator need not hold a
clarificatory hearing. To repeat,
probable cause merely implies
probability of guilt and should be
determined in a summary manner.
Preliminary investigation is not a
part of trial and it is only in a trial
where an accused can demand the
full exercise of his rights, such as the
right to confront and cross-examine
his accusers to establish his
innocence. In the case at bar, the
DOJ Panel correctly adjudged that
enough evidence had been adduced
to establish probable cause and
clarificatory hearing was
unnecessary.
II
We now come to the charge of
petitioners that respondent Judge
Raul de Leon and, later, respondent
Judge Amelita Tolentino issued
warrants of arrest against them
without conducting the required
preliminary examination. Petitioners
support their stance by highlighting
the following facts: (1) the issuance
of warrants of arrest in a matter of
few hours; (2) the failure of said
judges to issue orders of arrest; (3)
the records submitted to the trial
court were incomplete and
insufficient from which to base a
finding of probable cause; and (4)
that even Gerardo Biong who was
included in the Information as a mere
accessory had a "NO BAIL"
recommendation by the DOJ Panel.
Petitioners postulate that it was
impossible to conduct a "searching
examination of witnesses and
evaluation of the documents" on the
part of said judges.
The issuance of a warrant of arrest
interferes with individual liberty and
is regulated by no less than the
fundamental law of the land. Section
2 of Article III of the Constitution
provides:
Sec. 2. The right of the people to
be secure in their persons, houses,
papers, and effects against
unreasonable searches and seizures
of whatever nature and for any
purpose shall be inviolable, and no
search warrant or warrant of arrest
shall issue except upon probable
cause to be determined personally by
28
the judge after examination under
oath or affirmation of the
complainant and the witnesses he
may produce and particularly
describing the place to be searched
and the persons or things to be
seized.
The aforequoted provision deals with
the requirements of probable cause
both with respect to issuance of
warrants of arrest or search warrants.
The similarities and differences of
their requirements ought to be
educational. Some of them are
pointed out by Professors LaFave
and Israel, thus:32 "It is generally
assumed that the same quantum of
evidence is required whether one is
concerned with probable cause to
arrest or probable cause to search.
But each requires a showing of
probabilities as to somewhat
different facts and circumstances,
and thus one can exist without the
other. In search cases, two
conclusions must be supported by
substantial evidence: that the items
sought are in fact seizable by virtue
of being connected with criminal
activity, and that the items will be
found in the place to be searched. It
is not also necessary that a particular
person be implicated. By
comparison, in arrest cases there
must be probable cause that a crime
has been committed and that the
person to be arrested committed it,
which of course can exist without
any showing that evidence of the
crime will be found at premises
under that person's control." Worthy
to note, our Rules of Court do not
provide for a similar procedure to be
followed in the issuance of warrants
of arrest and search warrants. With
respect to warrants of arrest, section
6 of Rule 112 simply provides that
"upon filing of an information, the
Regional Trial Court may issue a
warrant for the arrest of the
accused." In contrast, the procedure
to be followed in issuing search
warrants is more defined. Thus,
Sections 3, 4 and 5 of Rule 126
provide:
xxx xxx xxx
Sec. 3. Requisites for issuing
search warrant. — A search warrant
shall not issue but upon probable
cause in connection with one specific
offense to be determined personally
by the judge after examination under
oath or affirmation of the
complainant and the witnesses he
may produce, and particularly
describing the place to be searched
and the things to be seized.
Sec. 4. Examination of
complainant; record. — The judge
must, before issuing the warrant,
personally examine in the form of
searching questions and answers, in
writing and under oath the
complainant and any witnesses he
may produce on facts personally
known to them and attach to the
record their sworn statements
together with any affidavits
submitted.
Sec. 5. Issuance and form of
search warrant. — If the judge is
thereupon satisfied of the facts upon
which the application is based, or
that there is probable cause to
believe that they exist, he must issue
the warrant, which must be
substantially in the form prescribed
by these Rules.
We discussed the difference in the
Procedure of issuing warrants of
arrest and search warrants in Soliven
vs. Makasiar,33 thus:
xxx xxx xxx
The second issue, raised by Beltran,
calls for an interpretation of the
constitutional provision on the
issuance of warrants of arrest. The
pertinent provision reads:
Art. III, Sec. 2. The right of the
people to be secure in their persons,
houses, papers and effects against
unreasonable searches and seizures
of whatever nature and for any
purpose shall be inviolable, and no
search warrant or warrant of arrest
shall issue except upon probable
cause to be determined personally by
the judge after examination under
oath or affirmation of the
complainant and the witnesses he
may produce, and particularly
describing the place to be searched
and the persons or things to be
seized.
The addition of the word
"personally" after the word
"determined" and the deletion of the
grant of authority by the 1973
Constitution to issue warrants to
"other responsible officers as may be
authorized by law," has apparently
convinced petitioner Beltran that the
Constitution now requires the judge
to personally examine the
complainant and his witnesses in his
determination of probable cause for
the issuance of warrants of arrest.
This is not an accurate interpretation.
What the Constitution underscores is
the exclusive and personal
responsibility of the issuing judge to
satisfy himself of the existence of
probable cause. In satisfying himself
of the existence of probable cause for
the issuance of a warrant of arrest,
the judge is not required to
personally examine the complainant
and his witnesses. Following
established doctrine and procedure,
he shall: (1) personally evaluate the
report and the documents submitted
by the fiscal regarding the existence
of probable cause and, on the basis
thereof, issue a warrant; or (2) if on
the basis thereof he finds no probable
cause, he may disregard the fiscal's
report and require the submission of
supporting affidavits of witnesses to
aid him in arriving at a conclusions
as to the existence of probable cause.
29
Sound policy dictates this procedure,
otherwise judges would be unduly
laden with the preliminary
examination and investigation of
criminal complaints instead of
concentrating on hearing and
deciding cases filed before their
courts.
Clearly then, the Constitution, the
Rules of Court, and our case law34
repudiate the submission of
petitioners that respondent judges
should have conducted "searching
examination of witnesses" before
issuing warrants of arrest against
them. They also reject petitioners'
contention that a judge must first
issue an order of arrest before issuing
a warrant of arrest. There is no law
or rule requiring the issuance of an
Order of Arrest prior to a warrant of
arrest.
In the case at bar, the DOJ Panel
submitted to the trial court its 26-
page report, the two (2) sworn
statements of Alfaro and the sworn
statements of Carlos Cristobal and
Lolita Birrer35 as well as the
counter-affidavits of the petitioners.
Apparently, the painstaking recital
and analysis of the parties' evidence
made in the DOJ Panel Report
satisfied both judges that there is
probable cause to issue warrants of
arrest against petitioners. Again, we
stress that before issuing warrants of
arrest, judges merely determine
personally the probability, not the
certainty of guilt of an accused. In
doing so, judges do not conduct a de
novo hearing to determine the
existence of probable cause. They
just personally review the initial
determination of the prosecutor
finding a probable cause to see if it is
supported by substantial evidence.
The sufficiency of the review
process cannot be measured by
merely counting minutes and hours.
The fact that it took the respondent
judges a few hours to review and
affirm the probable cause
determination of the DOJ Panel does
not mean they made no personal
evaluation of the evidence attached
to the records of the case.36
Petitioners' reliance on the case of
Allado vs. Diokno37 is misplaced.
Our Allado ruling is predicated on
the utter failure of the evidence to
show the existence of probable
cause. Not even the corpus delicti of
the crime was established by the
evidence of the prosecution in that
case. Given the clear insufficiency of
the evidence on record, we stressed
the necessity for the trial judge to
make a further personal examination
of the complainant and his witnesses
to reach a correct assessment of the
existence or non-existence of
probable cause before issuing
warrants of arrest against the
accused. The case at bar, however,
rests on a different factual setting. As
priorly discussed, the various types
of evidence extant in the records of
the case provide substantial basis for
a finding of probable cause against
the petitioner. The corpus delicti of
the crime is a given fact. There is an
eyewitness account of the imputed
crime given by Alfaro. The alibi
defense of petitioner Webb is also
disputed by sworn statements of their
former maids. It was therefore
unnecessary for the respondent
judges to take the further step of
examining ex parte the complainant
and their witnesses with searching
questions.
III
Petitioners also complain about the
denial of their constitutional right to
due process and violation of their
right to an impartial investigation.
They decry their alleged hasty and
malicious prosecution by the NBI
and the DOJ Panel. They also assail
the prejudicial publicity that attended
their preliminary investigation.
We reject these contentions. The
records will show that the DOJ Panel
did not conduct the preliminary
investigation with indecent haste.
Petitioners were given fair
opportunity to prove lack of probable
cause against them. The fairness of
this opportunity is well stressed in
the Consolidated Comment of the
Solicitor General, viz.:
Again, there is no merit in this
contention. Petitioners were afforded
all the opportunities to be heard.
Petitioner Webb actively participated
in the preliminary investigation by
appearing in the initial hearing held
on June 30, 1995 and in the second
hearing on July 14, 1995; and by
filing a "Motion for Production and
Examination of Evidence and
Documents" on June 27, 1995 (p. 4,
Petition), a "Reply to the compliance
and Comment/Manifestation to the
Motion for Production and
Examination of Evidence" on July 5,
1995 (p. 6, Petition), a "Comment
and Manifestation" on July 7, 1995
(p. 6, Petition), his "Counter-
Affidavit" on July 14, 1995 (pp. 6-7,
Petition) and a "Motion to Resolve"
on August 1, 1995. Numerous letter-
requests were also sent by the
petitioner Webb's counsel to the DOJ
Panel requesting the latter to furnish
him a copy of the reports prepared
by the FBI concerning the
petitioner's whereabouts during the
material period (Annexes "L", "L-1"
and "L-2" of the Supplemental
Petition dated August 14, 1995). In
fact, not satisfied with the decision
of the DOJ Panel not to issue
subpoena duces tecum to Atty.
Arturo L. Mercader, Jr., petitioner
Webb filed a "Petition for Injunction,
Certiorari, Prohibition and
Mandamus" with the Regional Trial
Court, Branch 63 of Makati in order
to compel said Atty. Mercader, Jr. to
produce the first sworn statement of
Alfaro for submission to the DOJ
Panel. (p. 4, Petition) The said court
dismissed the petition after Mercader
produced and submitted to the DOJ
Panel the first sworn statement of
Alfaro, without ruling on the
admissibility and credence of the two
(2) conflicting and inconsistent
sworn statements of the principal
witness, Alfaro. (Attached hereto is a
copy of the order of Judge Ruben A.
30
Mendiola, RTC-Makati, Branch 63
dated July 28, 1995) marked as
Annex "F."
It must also be pointed out that
despite the declaration by the DOJ
Panel that the preliminary
investigation was to be terminated
after the hearing held on July 14,
1995, the panel continued to conduct
further proceedings, e.g. comparison
of the photo-copies of the submitted
documents with the originals on July
17, 1995. (p. 7, Petition) The panel
even entertained the "Response"
submitted by accused Miguel
Rodriguez on July 18, 1995. (p. 17
Resolution) In addition to these, the
panel even announced that any party
may submit additional evidence
before the resolution of the case. (p.
8, Petition) From the time the panel
declared the termination of the
preliminary investigation on July 14,
1995, twenty-seven (27) days
elapsed before the resolution was
promulgated, and the information
eventually filed in the Regional Trial
Court of Parañaque on August 10,
1995. This notwithstanding the
directive of Section 3(f) Rule 112 of
the Revised Rules of Court that the
investigating officer shall resolve the
case within ten (10) days from the
termination of the preliminary
investigation. The DOJ Panel
precisely allowed the parties to
adduce more evidence in their behalf
and for the panel to study the
evidence submitted more fully. This
directly disputes the allegation of the
petitioners that the resolution was
done with indecent haste in violation
of the rights of the petitioners.
During the period of twenty-seven
(27) days, the petitioners were free to
adduce and present additional
evidence before the DOJ Panel.
Verily, petitioners cannot now assert
that they were denied due process
during the conduct of the preliminary
investigation simply because the
DOJ Panel promulgated the adverse
resolution and filed the Information
in court against them.
Petitioners cannot also assail as
premature the filing of the
Information in court against them for
rape with homicide on the ground
that they still have the right to appeal
the adverse resolution of the DOJ
Panel to the Secretary of Justice. The
filing of said Information is in accord
with Department of Justice Order
No. 223, series of 1993, dated June
25, 1993. We quote its pertinent
sections, viz.:
Sec. 4. Non-Appealable Cases;
Exceptions. — No appeal may be
taken from a resolution of the Chief
State Prosecutor/Regional State
Prosecutor/Provincial or City
Prosecutor finding probable cause
except upon showing of manifest
error or grave abuse of discretion.
Notwithstanding the showing of
manifest error or grave abuse of
discretion, no appeal shall be
entertained where the appellant had
already been arraigned. If the
appellant is arraigned during the non-inclusion of Alfaro is anchored
pendency of the appeal, said appeal on Republic Act
shall be dismissed motu propio by
the Secretary of Justice. No. 6981, entitled "An Act Providing
For A Witness Protection, Security
And Benefit Program And For Other
Purposes" enacted on April 24, 1991.
An appeal/motion for reinvestigation Alfaro qualified under its Section 10,
from a resolution finding probable which provides:
cause, however, shall not hold the
filing of the information in court.
xxx xxx xxx
Sec. 2. When to appeal. — The
appeal must be filed within a period
Sec. 10. State Witness. — Any
of fifteen (15) days from receipt of
person who has participated in the
the questioned resolution by the
commission of a crime and desires to
party or his counsel. The period shall
a witness for the State, can apply
be interrupted only by the filing of a
and, if qualified as determined in this
motion for reconsideration within ten
Act and by the Department, shall be
(10) days from receipt of the
admitted into the Program whenever
resolution and shall continue to run
the following circumstances are
from the time the resolution denying
present:
the motion shall have been received
by the movant or his counsel.
(Emphasis supplied)
(a) the offense in which his
testimony will be used is a grave
felony as defined under the R.P.C. or
Without doubt then, the said DOJ
Order No. 223 allows the filing of an its equivalent under special laws;
Information in court after the
consummation of the preliminary
investigation even if the accused can (b) there is absolute necessity
still exercise the right to seek a for his testimony;
review of the prosecutor's
recommendation with the Secretary
of Justice.
(c) there is no other direct
evidence available for the proper
prosecution of the offense
Next, petitioners fault the DOJ Panel committed;
for not including Alfaro in the
Information considering her alleged
conspiratorial participation in the
crime of rape with homicide. The
31
(d) his testimony can be
substantially corroborated on its
material points;
(e) he does not appear to be
most guilty; and
(f) he has not at anytime been
convicted of any crime involving
moral turpitude.
An accused discharged from an
information or criminal complaint by
the court in order that he may be a
State Witness pursuant to Sections 9
and 10 of Rule 119 of the Revised
Rules of Court may upon his petition
be admitted to the Program if he
complies with the other requirements
of this Act. Nothing in this Act shall
prevent the discharge of an accused
so that he can be used as a Witness
under Rule 119 of the Revised Rules
of Court.
Upon qualification of Alfaro to the
program, Section 12 of the said law
mandates her non-inclusion in the
criminal Complaint or Information,
thus:
xxx xxx xxx
Sec. 12. Effect of Admission of a
State Witness into the Program. —
The certification of admission into
the Program by the Department shall
be given full faith and credit by the
provincial or city prosecutor who is
required NOT TO INCLUDE THE
WITNESS IN THE CRIMINAL
COMPLAINT OR INFORMATION
and if included therein, to petition
the court for his discharge in order
that he can be utilized as a State
Witness. The court shall order the
discharge and exclusion of the said
accused from the information.
Admission into the Program shall
entitle such State Witness to
immunity from criminal prosecution
for the offense or offenses in which
his testimony will be given or used
and all the rights and benefits
provided under Section 8 hereof.
The validity of these provisions is
challenged by petitioner Webb. It is
urged that they constitute ". . . an
intrusion into judicial prerogative for
it is only the court which has the
power under the Rules on Criminal
Procedure to discharge an accused as
a state witness." The argument is
based on Section 9, Rule 11938
which gives the court the prerogative
to approve the discharge of an
accused to be a state witness.
Petitioner's argument lacks appeal
for it lies on the faulty assumption
that the decision whom to prosecute
is a judicial function, the sole
prerogative of courts and beyond
executive and legislative
interference. In truth, the prosecution
of crimes appertains to the executive
department of government whose
principal power and responsibility is
to see that our laws are faithfully
executed. A necessary component of
this power to execute our laws is the
right to prosecute their violators. The
right to prosecute vests the
prosecutor with a wide range of
discretion — the discretion of
whether, what and whom to charge,
the exercise of which depends on a
smorgasbord of factors which are
best appreciated by prosecutors. We
thus hold that it is not
constitutionally impermissible for
Congress to enact R.A. No. 6981
vesting in the Department of Justice
the power to determine who can
qualify as a witness in the program
and who shall be granted immunity
from prosecution.39 Section 9 of
Rule 119 does not support the
proposition that the power to choose
who shall be a state witness is an
inherent judicial prerogative. Under
this provision, the court, is given the
power to discharge a state witness
only because it has already acquired
jurisdiction over the crime and the
accused. The discharge of an accused
is part of the exercise of jurisdiction
but is not a recognition of an
inherent judicial function. Moreover,
the Rules of Court have never been
interpreted to be beyond change by
legislation designed to improve the
administration of our justice system.
R.A. No. 6981 is one of the much
sought penal reform laws to help
government in its uphill fight against
crime, one certain cause of which is
the reticence of witnesses to testify.
The rationale for the law is well put
by the Department of Justice, viz.:
"Witnesses, for fear of reprisal and
economic dislocation, usually refuse
to appear and testify in the
investigation/prosecution of criminal
complaints/cases. Because of such
refusal, criminal complaints/cases
have been dismissed for
insufficiency and/or lack of
evidence. For a more effective
administration of criminal justice,
there was a necessity to pass a law
protecting witnesses and granting
them certain rights and benefits to
ensure their appearance in
investigative bodies/courts."40
Petitioner Webb's challenge to the
validity of R.A. No. 6981 cannot
therefore succeed.
Further, petitioners charge the NBI
with violating their right to discovery
proceedings during their preliminary
investigation by suppressing the
April 28, 1995 original copy of the
sworn statement of Alfaro and the
FBI Report. The argument is novel
in this jurisdiction and as it urges an
expansive reading of the rights of
persons under preliminary
investigation it deserves serious
consideration. To start with, our
Rules on Criminal Procedure do not
expressly provide for discovery
proceedings during the preliminary
investigation stage of a criminal
proceeding.41 Sections 10 and 11 of
Rule 117 do provide an accused the
right to move for a bill of particulars
and for production or inspection of
material evidence in possession of
the prosecution.42 But these
provisions apply after the filing of
the Complaint or Information in
court and the rights are accorded to
32
the accused to assist them to make an
intelligent plea at arraignment and to
prepare for trial.43
This failure to provide discovery
procedure during preliminary
investigation does not, however,
negate its use by a person under
investigation when indispensable to
protect his constitutional right to life,
liberty and property. Preliminary
investigation is not too early a stage
to guard against any significant
erosion of the constitutional right to
due process of a potential accused.
As aforediscussed, the object of a
preliminary investigation is to
determine the probability that the
suspect committed a crime. We hold
that the finding of a probable cause
by itself subjects the suspect's life,
liberty and property to real risk of
loss or diminution. In the case at bar,
the risk to the liberty of petitioners
cannot be understated for they are
charged with the crime of rape with
homicide, a non-bailable offense
when the evidence of guilt is strong.
Attuned to the times, our Rules have
discarded the pure inquisitorial
system of preliminary investigation.
Instead, Rule 112 installed a quasi-
judicial type of preliminary
investigation conducted by one
whose high duty is to be fair and
impartial.44 As this Court
emphasized in Rolito Go vs. Court of
Appeals,45 "the right to have a
preliminary investigation conducted
before being bound over for trial for
a criminal offense, and hence
formally at risk of incarceration or
some other penalty, is not a mere
formal or technical right; it is a
substantive right." A preliminary
investigation should therefore be
scrupulously conducted so that the
constitutional right to liberty of a
potential accused can be protected
from any material damage. We
uphold the legal basis of the right of
petitioners to demand from their
prosecutor, the NBI, the original
copy of the April 28, 1995 sworn
statement of Alfaro and the FBI
Report during their preliminary
investigation considering their
exculpatory character, and hence,
unquestionable materiality to the
issue of their probable guilt. The
right is rooted on the constitutional
protection of due process which we
rule to be operational even during the
preliminary investigation of a
potential accused. It is also implicit
in section (3) (a) of Rule 112 which
requires during the preliminary
investigation the filing of a sworn
complaint, which shall ". . . state the
known address of the respondent and
be accompanied by affidavits of the
complainant and his witnesses as
well as other supporting documents .
. ."
In laying down this rule, the Court is
not without enlightened precedents
from other jurisdictions. In the 1963
watershed case of Brady v. Maryland
46 the United States Supreme Court
held that "suppression of evidence
favorable to an accused upon request
violates due process where the
evidence is material to guilt or
punishment, irrespective of the good
faith or bad faith of the prosecution."
Its progeny is the 1935 case of
Mooney v. Holohan 47 which laid
down the proposition that a
prosecutor's intentional use of
perjured testimony to procure
conviction violates due process.
Thus, evolved jurisprudence firming
up the prosecutor's duty to disclose
to the defense exculpatory evidence
in its possession.48 The rationale is
well put by Justice Brennan in
Brady49 — "society wins not only
when the guilty are convicted but
when criminal trials are fair." Indeed,
prosecutors should not treat litigation
like a game of poker where surprises
can be sprung and where gain by
guile is not punished.
But given the right of petitioners to
compel the NBI to disclose
exculpatory evidence in their favor,
we are not prepared to rule that the
initial non-production of the original
sworn statement of Alfaro dated
April 28, 1995 could have resulted in
the reasonable likelihood that the
DOJ Panel would not have found
probable cause. To be sure, the NBI,
on July 4, 1995, upon request of
petitioners, submitted a photocopy of
Alfaro's April 28, 1995 sworn
statement. It explained it cannot
produce the original as it had been
lost. Fortunately, petitioners, on July
28, 1995, were able to obtain a copy
of the original from Atty. Arturo
Mercader in the course of the
proceedings in Civil Case No.
951099.50 As petitioners admit, the
DOJ Panel accepted the original of
Alfaro's April 28, 1995 sworn
statement as a part of their
evidence.51 Petitioners thus had the
fair chance to explain to the DOJ
Panel then still conducting their
preliminary investigation the
exculpatory aspects of this sworn
statement. Unfortunately for
petitioners, the DOJ Panel still found
probable cause to charge them
despite the alleged material
discrepancies between the first and
second sworn statements of Alfaro.
For reasons we have expounded, this
finding of probable cause cannot be
struck down as done with grave
abuse of discretion.52 On the other
hand, the FBI Report while
corroborative of the alibi of
petitioner Webb cannot by itself
reverse the probable cause finding of
the DOJ Panel in light of the totality
of evidence presented by the NBI.
Finally, we come to the argument of
petitioner that the DOJ Panel lost its
impartiality due to the prejudicial
publicity waged in the press and
broadcast media by the NBI.
Again, petitioners raise the effect of
prejudicial publicity on their right to
due process while undergoing
preliminary investigation. We find
no procedural impediment to its
early invocation considering the
substantial risk to their liberty while
undergoing a preliminary
investigation.
33
In floating this issue, petitioners
touch on some of the most
problematic areas in constitutional
law where the conflicting demands
of freedom of speech and of the
press, the public's right to
information, and an accused's right
to a fair and impartial trial collide
and compete for prioritization. The
process of pinpointing where the
balance should be struck has divided
men of learning as the balance keeps
moving either on the side of liberty
or on the side of order as the tumult
of the time and the welfare of the
people dictate. The dance of balance
is a difficult act to follow.
In democratic settings, media
coverage of trials of sensational
cases cannot be avoided and
oftentimes, its excessiveness has
been aggravated by kinetic
developments in the
telecommunications industry. For
sure, few cases can match the high
volume and high velocity of
publicity that attended the
preliminary investigation of the case
at bar. Our daily diet of facts and
fiction about the case continues
unabated even today. Commentators
still bombard the public with views
not too many of which are sober and
sublime. Indeed, even the principal
actors in the case — the NBI, the
respondents, their lawyers and their
sympathizers — have participated in
this media blitz. The possibility of
media abuses and their threat to a
fair trial notwithstanding, criminal
trials cannot be completely closed to
the press and the public. In the
seminal case of Richmond
Newspapers, Inc. v. Virginia,53 it
was wisely held:
xxx xxx xxx
(a) The historical evidence of
the evolution of the criminal trial in
Anglo-American justice
demonstrates conclusively that at the
time this Nation's organic laws were
adopted, criminal trials both here and
in England had long been
presumptively open, thus giving
assurance that the proceedings were
conducted fairly to all concerned and
discouraging perjury, the misconduct
of participants, or decisions based on
secret bias or partiality. In addition,
the significant community
therapeutic value of public trials was
recognized: when a shocking crime
occurs, a community reaction of
outrage and public protest often
follows, and thereafter the open
processes of justice serve an
important prophylactic purpose,
providing an outlet for community
concern, hostility, and emotion. To
work effectively, it is important that
society's criminal process "satisfy the
appearance of justice," Offutt v.
United States, 348 US 11, 14, 99 L
Ed 11, 75 S Ct 11, which can best be
provided by allowing people to
observe such process. From this
unbroken, uncontradicted history,
supported by reasons as valid today
as in centuries past, it must be
concluded that a presumption of
openness inheres in the very nature
of a criminal trial under this Nation's
system of justice, Cf., e.g., Levine v.
United States, 362 US 610, 4 L Ed
2d 989, 80 S Ct 1038.
(b) The freedoms of speech,
press, and assembly, expressly
guaranteed by the First Amendment,
share a common core purpose of
assuring freedom of communication
on matters relating to the functioning
of government. In guaranteeing
freedoms such as those of speech and
press, the First Amendment can be
read as protecting the right of
everyone to attend trials so as to give
meaning to those explicit guarantees;
the First Amendment right to receive
information and ideas means, in the
context of trials, that the guarantees
of speech and press, standing alone,
prohibit government from summarily
closing courtroom doors which had
long been open to the public at the
time the First Amendment was
adopted. Moreover, the right of
assembly is also relevant, having
been regarded not only as an
independent right but also as a
catalyst to augment the free exercise
of the other First Amendment rights
with which it was deliberately linked
by
the draftsmen. A trial courtroom is a
public place where the people
generally — and representatives of
the media — have a right to be
present, and where their presence
historically has been thought to
enhance the integrity and quality of
what takes place.
(c) Even though the
Constitution contains no provision
which by its terms guarantees to the
public the right to attend criminal
trials, various fundamental rights, not
expressly guaranteed, have been
recognized as indispensable to the
enjoyment of enumerated rights. The
right to attend criminal trials is
implicit in the guarantees of the First
Amendment; without the freedom to
attend such trials, which people have
exercised for centuries, important
aspects of freedom of speech and of
the press could be eviscerated.
Be that as it may, we recognize that
pervasive and prejudicial publicity
under certain circumstances can
deprive an accused of his due
process right to fair trial. Thus, in
Martelino, et al. vs. Alejandro, et
al.,54 we held that to warrant a
finding of prejudicial publicity there
must be allegation and proof that the
judges have been unduly influenced,
not simply that they might be, by the
barrage of publicity. In the case at
bar, we find nothing in the records
that will prove that the tone and
content, of the publicity that attended
the investigation of petitioners fatally
infected the fairness and impartiality
of the DOJ Panel. Petitioners cannot
just rely on the subliminal effects of
publicity on the sense of fairness of
the DOJ Panel, for these are
basically unbeknown and beyond
knowing. To be sure, the DOJ Panel
is composed of an Assistant Chief
State Prosecutor and Senior State
Prosecutors. Their long experience in
criminal investigation is a factor to
34
consider in determining whether they
can easily be blinded by the klieg
lights of publicity. Indeed, their 26-
page Resolution carries no
indubitable indicia of bias for it does
not appear that they considered any
extra-record evidence except
evidence properly adduced by the
parties. The length of time the
investigation was conducted despite
its summary nature and the
generosity with which they
accommodated the discovery
motions of petitioners speak well of
their fairness. At no instance, we
note, did petitioners seek the
disqualification of any member of
the DOJ Panel on the ground of bias
resulting from their bombardment of
prejudicial publicity.
It all remains to state that the
Vizconde case will move to a more
critical stage as petitioners will now
have to undergo trial on the merits.
We stress that probable cause is not
synonymous with guilt and while the
light of publicity may be a good
disinfectant of unfairness, too much
of its heat can bring to flame an
accused's right to fair trial. Without
imposing on the trial judge the
difficult task of supervising every
specie of speech relating to the case
at bar, it behooves her to be
reminded of the duty of a trial judge
in high profile criminal cases to
control publicity prejudicial to the
fair administration of justice.55 The
Court reminds judges that our ability
to dispense impartial justice is an
issue in every trial and in every
criminal prosecution, the judiciary
always stands as a silent accused.
More than convicting the guilty and
acquitting the innocent, the business
of the judiciary is to assure
fulfillment of the promise that justice
shall be done and is done — and that
is the only way for the judiciary to
get an acquittal from the bar of
public opinion.
IN VIEW WHEREOF, the petitions
are dismissed for lack of showing of
grave abuse of discretion on the part
of the respondents. Costs against
petitioners.
SO ORDERED.
SPECIAL FIRST DIVISION
[G.R. Nos. 121039-45. October 18,
2001]
THE PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs.
MAYOR ANTONIO L. SANCHEZ,
GEORGE MEDIALDEA, ZOILO
AMA, BALDWIN BRION, LUIS
CORCOLON, ROGELIO
CORCOLON, and PEPITO KAWIT,
accused-appellants.
RESOLUTION
MELO, J.:
Before us is a motion for
reconsideration of our January 25,
1999 decision, penned by Justice
Antonio M. Martinez, affirming in
toto the judgment of conviction
rendered by Branch 70 of the Pasig
City Regional Trial Court finding
accused-appellants Mayor Antonio
Sanchez, George Medialdea, Zoilo
Ama, Baldwin Brion, Luis Corcolon,
Rogelio Corcolon and Pepito Kawit
guilty beyond reasonable doubt of
the crime of rape with homicide, and
additionally, ordering each of them
to pay the amount of Seven Hundred
Thousand Pesos (P700,000.00) to the
heirs of the two victims as additional
indemnity. While accused-appellants
Antonio Sanchez, Zoilo Ama,
Baldwin Brion and Pepito Kawit
seasonably filed their respective
motions for reconsideration, it was
only on December 6, 1999 that the
Office of the Solicitor General filed
its Comment thereto. And since
Justice Martinez had retired earlier
on February 2, 1999, in accordance
with A.M. No. 99-8-09 promulgated
by the Court on February 15, 2000,
the motions for reconsideration filed
by accused-appellants was assigned
by raffle only on September 18, 2001
to herein ponente for study and
preparation of the appropriate action.
In his motion for reconsideration,
Mayor Antonio Sanchez avers that
he is a victim of trial and conviction
by publicity and that the principal
witnesses Aurelio Centeno and
Vicencio Malabanan presented by
the prosecution are lacking in
credibility. He likewise contends that
the testimony of his 13-year old
daughter vis--vis his whereabouts on
the night of the felony should have
been given full faith and credit as
against the testimony of Centeno and
Malabanan. Lastly, Mayor Sanchez
seeks the reconsideration of the
amount of the gargantuan damages
awarded on the ground that the same
have no factual and legal bases.
In the same vein, accused-appellants
Zoilo Ama, Baldwin Brion, and
Pepito Kawit, in their motion for
reconsideration, maintain that
prosecution witnesses Centeno and
Malabanan have been sufficiently
impeached by prior inconsistent
35
statements allegedly pertaining to
material and crucial points of the
events at issue. Not only that, they
assert that independent and
disinterested witnesses have
destroyed the prosecutions version of
events.
Preliminarily, it may be observed
that, except for the issue of civil
damages raised by Mayor Sanchez,
accused-appellants have not
presented any issue new or different
from that which they had previously
raised before the trial court and this
Court. Moreover, the issues they
have raised have been discussed at
length and passed upon by both the
court a quo and by this Court. Thus,
on the charge that accused-appellant
Sanchez is a victim of trial and
conviction by publicity, in our
January 25, 1999 decision, citing
People vs. Teehankee, Jr. (249
SCRA 54), we declared:
We cannot sustain appellants claim
that he was denied the right to
impartial trial due to prejudicial
publicity. It is true that the print and
broadcast media gave the case at bar
pervasive publicity, just like all high
profile and high stake criminal trials.
Then and now, we rule that the right
of an accused to a fair trial is not
incompatible to a free press. To be
sure, responsible reporting enhances
an accuseds right to a fair trial for, as
well pointed out, a responsible press
has always been regarded as the
handmaiden of effective judicial
administration, especially in the
criminal field The press does not
simply publish information about
trials but guards against the
miscarriage of justice by subjecting
the police, prosecutors, and judicial
processes to extensive public
scrutiny and criticism.
Pervasive publicity is not per se
prejudicial to the right of an accused
to fair trial. The mere fact that the
trial of appellant was given a day-to-
day, gavel-to-gavel coverage does
not by itself prove that publicity so
permeated the mind of the trial judge
and impaired his impartiality Our
judges are learned in the law and
trained to disregard off-court
evidence and on-camera
performances of parties to a
litigation. Their mere exposure to
publications and publicity stunts
does not per se fatally infect their
impartiality.
At best, appellant can only conjure
possibility of prejudice on the part of
the trial judge due to the barrage of
publicity that characterized the
investigation and trial of the case. In
Martelino et al. vs. Alejandro et al.,
we rejected this standard of
possibility of prejudice and adopted
the test of actual prejudice as we
ruled that to warrant a finding of
prejudicial publicity, there must be
allegation and proof that the judges
have been unduly influenced, not
simply that they might be, by the
barrage of publicity. In the case at
bar, the records do not show that the
trial judge developed actual bias
against appellant as a consequence of
the extensive media coverage of the
pre-trial and trial of his case. The
totality of circumstances of the case
does not prove that the trial judge
acquired a fixed position as a result
of prejudicial publicity which is
incapable of change even by
evidence presented during the trial.
Appellant has the burden to prove
this actual bias and he has not
discharged the burden.
This failure to present proof of actual
bias continues to hound accused-
appellant Sanchez, having failed, in
his motion for reconsideration, to
substantiate his claims of actual bias
on the part of the trial judge. Not
only that, accused-appellants case
has been exhaustively and
painstakingly reviewed by the Court
itself. Accused-appellant Sanchez
has not shown by an iota of proof
that the Court, in the examination of
his appeal, was unduly swayed by
publicity in affirming the sentence of
conviction imposed by the trial court.
The charge of conviction by
publicity leveled by accused-
appellant has thus no ground to stand
on.
As to the claim that witnesses
Centeno and Malabanan lack
credibility and that they were
sufficiently impeached by prior
inconsistent statements, the same is
old hat, to say the least. It is
hornbook doctrine in criminal
jurisprudence that when the issue is
one of credibility of witnesses,
appellate courts will not disturb the
findings of the trial court and the
appellate courts will respect these
findings considering that trial courts
are in a better position to decide the
question, having heard the witnesses
themselves and observed their
deportment and manner of testifying
during the trial (People vs. Mendoza,
332 SCRA 485 [2000]). In the
instant case, then Judge Harriet
Demetriou found both Centeno and
Malabanan to have testified in a
frank, spontaneous, and
straightforward manner; and that
despite gruelling cross-examination
by a battery of defense lawyers, their
testimony never wavered on the
substantial matters in issue.
As to the alleged inconsistencies in
the testimony of Centeno and
Malabanan, suffice it to say that the
points raised have all been carefully
and assiduously examined, not only
by the trial court but also by the
Court itself, and that the
inconsistencies were found to refer
to minor and collateral matters. It is
well-settled that so long as the
witnesses declarations agree on
substantial matters, the
inconsequential inconsistencies and
contradictions dilute neither the
witnesses credibility nor the verity of
their testimony (People vs. Agomo-
o, 334 SCRA 279 [2000]). Accused-
appellants have not shown in their
motions for reconsideration new
evidence to warrant disregard for the
above-rule, nor have they shown that
the Court has overlooked,
misunderstood, or misapplied some
36
fact of weight and circumstance that
would have materially affected the
outcome of the case.
Accused-appellant Sanchezs
argument that the testimony of his
13-year old daughter, Ave Marie
Sanchez, as to his whereabouts on
the night of the crime should be
given full faith and credence is
likewise unavailing. While it is true
that statements of children are
accorded great probative value, it is
likewise true that alibi is the weakest
defense an accused can concoct.
Where nothing supports the alibi
except the testimony of a relative, it
deserves but scant consideration
(People vs. Waggay, 218 SCRA 742
[1993]). Moreover, accused-
appellant Sanchezs alibi cannot
prevail over the positive declarations
of the prosecution that he was at
Erais Farm that fateful night. The
alibis of accused-appellants Zoilo
Ama, Baldwin Brion, and Pepito
Kawit are even worse, not having
been corroborated by any other
evidence. The assertions of these
accused-appellants as to their
innocence are thus entitled short
shrift from this Court.
Accused-appellant Sanchezs
asseverations as to the amount of
damages awarded is, however,
meritorious. The trial court awarded
the Sarmenta family P50,000.00 as
civil liability for the wrongful death
of Eileen Sarmenta, P106,650.00 for
the funeral expenses they incurred,
and P3,276,000.00 for the loss of
Eileen Sarmentas earning capacity;
or a total of P3,432,650.00 as actual
damages. On the other hand, the
Gomez family was awarded by the
trial court a total of P3,484,000.00 as
actual damages, broken down as
follows: P50,000.00 for the wrongful
death of Allan Gomez, P74,000.00
for the latters funeral, and
P3,360,000.00 for the loss of the
latters earning capacity.
Similarly, the trial court ordered
accused-appellants to pay the sum of
P2,000,000.00 to the Sarmenta
family and another P2,000,000.00 to
the Gomez family as moral damages.
Lastly, the trial court ordered
accused-appellants to pay the
Sarmenta and Gomez families the
sum of P164,250.00 and 191,000.00,
respectively, for litigation expenses
incurred.
The Court, in its decision dated
January 25, 1999, affirmed in toto
the decision of the lower court.
However, we also ordered each
accused-appellant to pay the
respective heirs of Eileen Sarmenta
and Allan Gomez an additional
indemnity of P350,000.00 each,
stating that since each accused-
appellant had been found guilty of
seven counts of rape with homicide,
jurisprudence dictated that for each
count, each accused-appellant is
liable for civil indemnity of
P50,000.00, or a total of
P350,000.00.
Since the trial courts award of actual
damages to the Gomez and Sarmenta
families already included civil
indemnity in the amount of
P50,000.00, to order each accused-
appellant to pay an additional
P350,000.00 as civil indemnity
would be double recovery of
damages on the part of the Gomez
and Sarmenta families for the same
act or omission. Thus, the amount of
P50,000.00 awarded by the trial
court must each be deducted from
the amount of actual damages due to
the Gomez and Sarmenta families.
As for funeral expenses, the Court
had occasion to declare in People vs.
Timon (281 SCRA 577 [1997]) that
burial expenses, which are by nature
actual expenses must be proved.
Since no proof of burial expenses
was ever presented in the instant
case, its award will not be allowed. It
is a settled rule that there must be
proof that actual or compensatory
damages have been suffered and
evidence of its actual amount
(People vs. Nablo, 319 SCRA 784
[1999]). While the funeral expenses
incurred by the Sarmenta family
were supported by the appropriate
receipts, the same is not true for the
funeral expenses incurred by the
Gomez family. Not having been duly
receipted, the amount of P74,000.00
awarded to the Gomez family as
funeral expenses must, perforce, be
deleted. However, as the heirs of
Allan Gomez clearly incurred funeral
expenses, P10,000.00 by way of
nominal damages should be
awarded. This award is adjudicated
so that a right which has been
violated may be recognized or
vindicated, and not for the purpose
of indemnification (see People vs.
Candare, 333 SCRA 338 [2000]).
The award of P3,276,000.00 and
P3,360,000.00, representing the
alleged loss of earning capacity of
Sarmenta and Gomez, respectively,
also merit review. Eileen Sarmenta,
at the time of her death, was a
graduating student of the College of
Agriculture of the University of the
Philippines at Los Baos (UPLB),
majoring in Food and Nutrition for
Large Animals. Allan Gomez was
likewise a senior student of the
College of Agriculture of UPLB,
majoring in Beef Production. The
trial court, using the American
Expectancy Table of Mortality,
pegged the life expectancy of
Sarmenta, 21 years old at the time of
her death, and Gomez, 19 years old
at the time of his death, at 39.1 and
40.6 years, respectively. Believing
that the victims would have earned a
monthly salary of P15,000.00 and
incurred living expenses of
P8,000.00 per month, the trial court
awarded P3,276,000.00 and
P3,360,000.00 as the amount
recoverable by the Sarmenta and
Gomez families, respectively, for the
loss of the earning capacity of Eileen
and Allan.
While accused-appellant Sanchez
contends that the awards of
P3,276,000.00 and P3,360,000.00
are baseless in fact and law, no
37
evidence having been adduced to
prove that the victims had any actual
income at the time of their demise, it
is well-settled that to be
compensated for loss of earning
capacity, it is not necessary that the
victim, at the time of injury or death,
be gainfully employed.
Compensation of this nature is
awarded not for loss of earnings but
for loss of capacity to earn money
(People vs. Teehankee, supra).
Likewise, the fact that the
prosecution did not present
documentary evidence to support its
claim for damages for loss of earning
capacity of the deceased does not
preclude recovery of the same
(People vs. Quilang, 312 SCRA 314
[1999]; People vs. Verde, 302 SCRA
690 [1999]). On the part of Eileen
Sarmenta, her mother testified that
Eileen had an offer for employment
from Monterey Farms. On the other
hand, Allan Gomezs mother testified
that her deceased son planned to
work on a private farm after
graduation.
Moreover, in Cariaga et al. vs. LTB
and Manila Railroad Co. (110 Phil.
346 [1960]), the Court awarded
compensatory damages for the loss
of earning capacity to Edgardo
Cariaga, a 4th year medical student
at UST, stating that while his
scholastic record may not have been
first rate, it was, nevertheless,
sufficient to justify the assumption
that he could have finished the
course, would have passed the board
in due time, and that he could have
possibly earned as a medical
practitioner the minimum monthly
income of P300.00.
Both Sarmenta and Gomez were
senior agriculture students at UPLB,
the countrys leading educational
institution in agriculture. As
reasonably assumed by the trial
court, both victims would have
graduated in due course. Undeniably,
their untimely death deprived them
of their future time and earning
capacity. For these deprivation, their
heirs are entitled to compensation.
Difficulty, however, arises in
measuring the value of Sarmentas
and Gomezs lost time and capacity to
earn money in the future, both
having been unemployed at the time
of death. While the law is clear that
the deceased has a right to his own
time which right cannot be taken
from him by a tortfeasor without
compensation the law is also clear
that damages cannot be awarded on
the speculation, passion, or guess of
the judge or the witnesses. In this
case, Eileen Sarmentas mother
testified that for a new graduate of
UPLB, the basic salary was more or
less P15,000.00 per month. Allan
Gomezs mother, on the other hand,
testified that her son could have
easily gotten P10,000.00 to
P15,000.00 per month. Clearly, the
testimony of said witnesses are
speculative, insufficient to prove that
in 1993, Sarmenta and Gomez would
have indeed earned P15,000.00 a
month had they managed to
graduate. However, considering that
Sarmenta and Gomez would have
graduated in due time from a
reputable university, it would not be
unreasonable to assume that in 1993
they would have earned more than
the minimum wage. All factors
considered, the Court believes that it
is fair and reasonable to fix the
monthly income that the two would
have earned in 1993 at P8,000.00 per
month (or P96,000.00/year) and their
deductible living and other incidental
expenses at P3,000.00 per month (or
P36,000.00/year). Hence, in
accordance with the formula adopted
by the Court in Villa Rey Transit,
Inc. vs. CA (31 SCRA 511 [1970]),
and using the American Expectancy
Table of Mortality, the loss of
Sarmenta and Gomezs earning
capacity is to be computed as
follows:
Net earning capacity = Life
expectancy x (Gross Annual Income
Living Expenses)
where: Life expectancy = 2/3 (80 the
age of the deceased)
Heirs of Eileen Sarmenta:
= 2/3 (80-21) x (96,000 36,000)
= 39.353 x 60,000
= P2,361,180.00
Heirs of Allan Gomez:
= 2/3 (80-19) x (96,000 36,000)
= 40.687 x 60,000
= P2,441,220.00
As to the award of P2,000,000.00
each as moral damages to the
Sarmenta and Gomez families, these
must also be reduced, the same being
excessive. While the assessment of
moral damages is left to the
discretion of the court according to
the circumstances of each case
(Article 2216, Civil Code), the
purpose of moral damages is
essentially indemnity or reparation,
not punishment or correction. Moral
damages are emphatically not
intended to enrich a complainant at
the expense of a defendant; they are
awarded only to enable the injured
party to obtain means, diversions or
amusements that will serve to
alleviate the moral suffering he has
undergone by reason of the
defendants culpable action. In other
words, the award of moral damages
is aimed at a restoration, within the
limits of the possible, of the spiritual
status quo ante; and therefore, it
must be proportionate to the
suffering inflicted (Dela Serna vs.
CA, 233 SCRA 325 [1994]). The
intensity of the pain experienced by
38
the relatives of the victim is
proportionate to the intensity of
affection for him and bears no
relation whatever with the wealth or
the means of the offender. The death
caused by a beggar is felt by the
parents of the victim as intensely as
that caused by the action of a
wealthy family. The Court, in the
exercise of its discretion, thus
reduces the amount of moral
damages awarded to the heirs of
Eileen Gomez and Allan Sarmenta to
P1,000,000.00 each. As to the award
of attorneys fees and litigation
expenses, the same is reasonable and
justified, this case having dragged on
for over eight years.
WHEREFORE, premises considered,
we AFFIRM the conviction of
accused-appellants for seven counts
of rape with homicide and the
sentence of reclusion perpetua
imposed upon them for each of said
counts, with MODIFICATION that
the accused be ordered to pay the
heirs of the victims as follows:
To the heirs of Eileen Sarmenta:
1. Death indemnity P 350,000.00
2. Moral damages 1,000,000.00
3. Funeral expenses 106,650.00
Total P 3,992,220.00 THIRD DIVISION
4. Loss of earning capacity
2,361,180.00
SO ORDERED. [G.R. No. 130442. April 6, 2000]
5. Attorneys fees & litigation
expenses 164,250.00 THE SUMMARY DISMISSAL
BOARD AND THE REGIONAL
APPELLATE BOARD, PNP,
REGION VI, ILOILO CITY,
---------------------- petitioners, vs. C/INSP. LAZARO
TORCITA, respondent.
Total P 3,982,080.00
DECISION
To the heirs of Allan Gomez:
GONZAGA-REYES, J.:
1. Death indemnity P 350,000.00
Before us is a Petition for Review by
way of Certiorari of the Decision of
the Court of Appeals[1] in CA-G.R.
2. Moral damages 1,000,000.00
SP No. 43872, which set aside the
Decision of the Regional Director
(RD) of the Philippine National
3. Nominal damages 10,000.00 Police (PNP) of Iloilo City, through
its Summary Dismissal Board
(SDB), suspending herein respondent
4. Loss of earning capacity C/Insp. Lazaro Torcita from the
2,441,220.00 service for twenty (20) days for
"Simple Irregularity in the
Performance of Duty under Section
41 of R. A. 6975." Sdaad
5. Attorneys fees & litigation
expenses 191,000.00
The antecedents are as follows:
----------------------
On July 6, 1994, the following
verified complaints were filed
39
against C/Insp. Lazaro Torcita,
herein respondent, by Manuel Puey,
Jesus Puey, Alex Edwin del Rosario:
1)......Administrative Case Nr. SDHB
"B6" -94-01- for Conduct
Unbecoming of a Police Officer filed
by Jesus H. Puey in a complaint
dated June 25, 1994;
2)......Admin. Case Nr. SDHB "B6"-
94-02- for Grave Threats filed by
Jesus H. Puey;
3)......Admin. Case Nr. SDHB "B6"-
94-03 for Abuse of Authority and
Illegal Search filed by Jesus H. Puey;
4)......Admin. Case Nr. SDHB "B6"-
94-04 for Abuse of Authority and
Violation of Domicile filed by Jesus
H. Puey;
5)......Admin. Case Nr. SDHB "B6"-
94-05 for Abuse of Authority and
Violation of COMELEC Gun Ban
filed by Jesus H. Puey;
6)......Admin. Case Nr. SDHB "B6" -
94-06 for Conduct Unbecoming of a
Police Officer filed by Manuel H.
Puey;
7)......Admin. Case Nr. SDHB "B6" -
94-07 for Illegal Search filed by
Manuel H. Puey;
8)......Admin. Case Nr. SDHB "B6" -
94-08 for Grave Abuse of Authority
and Violation of Domicile filed by
Manuel Puey;
9)......Admin. Case Nr. SDHB "B6" -
94-09 for Abuse of Authority and
Violation of COMELEC Gun Ban
filed by Manuel Puey;
10)......Admin. Case Nr. SDHB
"B6"-94-10 for Conduct
Unbecoming of a Police Officer filed
by Alex Edwin del Rosario;
11)......Admin. Case Nr. SDHB
"B6"-94-11 for Abuse of Authority
and Grave Threats filed by Alex
Edwin del Rosario;
12)......Admin. Case Nr. SDHB "B6"
94-12 for Abuse of Authority and
Violation of COMELEC Gun Ban
filed by Alex Edwin del Rosario.
The twelve administrative
complaints were the subject of
administrative hearings before the
Summary Dismissal Board of the
PNP. At the pre-trial, the parties and
their respective counsels agreed that
the twelve cases shall be
consolidated into one "major
complaint" for "conduct unbecoming
of a police officer" under Par. e, Sec.
3, Rule II, Memorandum Circular
No. 92-006 pursuant to RA 6975[2].
The statement of the case by the
Summary Dismissal Board is as
follows:
"That sometime last April 26, 1994,
after attending the birthday party of
Miss Jessie Vasquez Alex Edwin del
Rosario, together with Rosita Bistal,
Carmen Braganza and Cristita Dawa
boarded Mazda pick up with plate nr.
HHP-808 and driven by Reynaldo
Consejo, proceeded towards the
direction of Cadiz City.
While nearing Crossing Cadiz in the
vicinity of Sitio Puting Tubig, the
aforementioned Mazda pick-up
driven by Consejo overtook a red
Cortina Ford driven by Major Lazaro
Torcita; That on board the motor
vehicle driven by Torcita were three
females sitted at the back;
That Major Lazaro Torcita signaled
the passengers of the Mazda pick-up
to stop, however, the driver of the
Mazda pick-up refused to abide by
the signal and instead accelerated
and proceeded to Hda. Aimee
without stopping. Scs daad
That upon reaching Hda. Aimee
Major Lazaro Torcita, entered the
compound and was approached by
two persons in civilian clothes which
prevented him from further
proceeding; Moments after, the
patrol car of Cadiz PNP arrived and
together with Major Torcita,
approached Jesus H. Puey and Alex
Edwin del Rosario, inquiring as to
the identity of the persons who
accosted him;
The complainants alleged that Major
Torcita approached and entered the
compound of Hda. Aimee, very
drunk, with back-up vehicle full of
armed policemen, confronted Jesus
H. Puey and Alex Edwin del Rosario
as who stopped him at the gate,
shouting in a very, very loud voice,
invectives and remarks;
That such act of Major Lazaro
Torcita constitute Conduct
Unbecoming of an Officer not worth
of respect;
In his answer, the respondent, Lazaro
R. Torcita, while admitting that he
entered the premises of the
complainants, the same was done on
a regular, lawful and proper way for
he was in the performance of his
official duties in pursuing the suspect
who committed a crime in his
presence;
From the affidavits of the witnesses
and testimonies presented by the
complainants and the counter
40
affidavits and the counter testimonies
of the respondent, the ISSUE before
the Board is whether the respondent
is guilty of Conduct Unbecoming of
a Police Officer under Republic Act
6975 as implemented by
Memorandum Circular 92-006 of the
National Police Commission under
Rule II Section 3, Paragraph C,
committed thru a series of illegal acts
consisting of Grave Threats, Illegal
Search, Abuse of Authority,
violation of Domicile and Violation
of COMELEC Gun Ban."
The complainant presented
documentary evidence and witnesses
Congressman Manuel Puey, Rosita
Bistal, Alex Edwin del Rosario and
Reynaldo Consejo. Respondent
Torcita testified in his behalf and
presented Nehru Java, a member of
the PNP Cadiz, who was with him
during the incident in question.
The Summary Dismissal Board made
the following findings of facts:
"That sometime last April 26, 1994,
at about 10:30 in the evening, a red
Cortina Ford, driven by C/Insp.
Lazaro H. Torcita, with his aide,
PO2 Nehru Java, in the front seat and
his wife with two ladies at the
backseat, were overtaken by a mazda
pick-up, in the vicinity of Sitio
Puting Tubig, about 10 kilometers
from crossing Cadiz, owned by
Congressman Manuel Puey and
driven Reynaldo Consejo with four
(4) passengers in the persons of Alex
Edwin del Rosario, the executive
assistant and financial analyst of
Congressman Puey, three (3) helpers
employed under the Congressman,
namely, Rosita Bistal, Carmen
Braganza and Cristina Dawa; Sup
rema
That both parties came from the
Municipality of Victorias where they
attended some social functions on
the occasion of the town fiesta;
After the mazda pick-up has
overtaken the red Cortina Ford, it
accelerated speed and proceeded to
Hda. Aimee, a sugarcane plantation
in Cadiz City, also owned by
Congressman Manuel Puey; The red
Cortina Ford followed also at high
speed until it reached Hda. Aimee
where C/Insp. Torcita and PO2 Java
alighted and the confrontation with
Alex Edwin del Rosario and Jesus
Puey, occurred;
The Complainant tried to establish
the fact that nothing unusual
occurred or transpired between the
parties in the vicinity of Sitio Puting
Tubig and that Torcita has no
business pursuing them; However
the Board is more inclined to give
credence to the affidavits (exhibit 5
& 6) and the testimony of C/Insp.
Torcita that a vehicular collision
almost took place due to reckless
driving of the driver of the mazda
pick-up;
That it was the duty inherent to the
position as Chief of Police of Cadiz
City and as deputy of the Land
Transportation Office to enforce
traffic rules and regulation to prevent
chaos and accidents in roads and
highways of the country (exhibit 13);
This observation is further bolstered
by the testimony of Reynaldo
Consejo, the driver of the mazda
pick-up, that he was able to overtake
the red Cortina Ford only after the
latter car hit the shoulder of the road
and after overtaking he increased his
speed (tsn page 131, August 30,
1994 );
This sudden increase in speed of a
driver involved in a vehicular
accident is a classic move for one
who wants a fast get away from the
scene, to escape responsibility;
Further, Alex Edwin del Rosario
testified that upon reaching Hda.
Aimee, he instructed the guard to be
on look-out for a car might be
following them and might enter the
compound (TSN page 70 August 30,
1994 ). This conduct would show
that witness is anticipating that red
Cortina Ford would follow them
because of the incident in Sitio
Puting Tubig which could have
ended in a vehicular collision and
finally no proof was presented to
show that no other reason exist as to
why C/Insp. Torcita would pursue
the Mazda pick up other than near
occurrence of a vehicular collision;
Juris
The Complainant presented the
Joint-Affidavit of Rosita Bistal and
Reynaldo Consejo and the Affidavit
of Alex Edwin del Rosario, jointly
taken, may be considered as proof
that C/Insp. Torcita has committed
act or series of acts that would
constitute Grave Threat, Illegal
Search, Abuse of Authority,
Violation of Domicile and Violation
of COMELEC Resolutions regarding
the gun ban, thus CONDUCT
UNBECOMING OF A POLICE
OFFICER;
That in the Joint-Affidavit of Rosita
Bistal and Reynaldo Consejo (exhibit
c; exhibit 2), Bistal attempted to
establish the fact that C/Insp. Torcita
and PO2 Java illegally entered the
gate of the compound but were
stopped by the guards armed with
cane stick or batuta, however in her
testimony given during the hearing
(tsn page 32, August 30, 1994) she
stated that she did not know what
transpired between the two men
approaching and the guards near the
gate because she, together with her
companions, were busy unloading
kitchen utensil from the pick-up to
the kitchen and Consejo
categorically stated that this portion
of their affidavit, specifically
paragraph 7, is NOT TRUE; Alex
Edwin del Rosario, in his testimony
given in the hearing, corroborated
this fact that he also did not see or
hear what happened for he was in
41
some distance away and he cannot
see them clearly (TSN page 73,
August 30, 1994 );
The only piece of evidence presented
in connection with the incident
which happened near the gate of the
compound is the affidavit of C/Insp.
Torcita and his testimony given in
the hearing of the case that when he
was walking towards the compound
together with his aide, PO2 Nehru
Java, two armed civilian guards
stopped and threatened him; He
identified himself however, the same
had no effect, and PO2 Java
whispered that there are armed men
around them and that it is dangerous
for them to continue. That at this
point, they radioed for back-up;
Since no proof to the contrary was
presented by the Complainant nor
was there any witness or witnesses
presented to rebut this allegations,
the Board had no other choice except
to consider these allegations as
proof; (Exhibit 5 & 6); The Board
also resolve to take note that a
metropolitan newspaper with
nationwide circulation and with
unquestionable credential, had
published a news item about the
presence of armed security personnel
of Congressman Manuel Puey
exhibit 14); This evidence give more
credence to the fact that there were
really armed men in the premises
where the aforementioned incident
happened; That this is corroborated
further by the affidavit of PO2 Nehru
Java (exhibit 17); Sc juris
This observation of the Board that
there were really armed men in the
premises of Hda. Aimee, is further
enhance by the fact that Major
Torcita felt their presence when he
desisted from further entering the
compound, a feeling which was
developed and nurtured by years of
living under combat conditions and
finally the Board also feels that the
presence of armed persons in the
offices and properties of high
government officials is accepted as a
necessary consequence for their
protection due to the greater risks
they are expose to;
That because of the incident in Sitio
Puting Tubig which was further
aggravated by the confrontation near
the gate of the compound of Hda.
Aimee, C/Insp. Torcita upon the
arrival of the back-up force of PNP
Cadiz City, proceeded to the place
where Capt. Jesus Puey and Alex
Edwin del Rosario were; This fact is
not disputed by the parties;
xxx......xxx......xxx
Chief Insp. Lazaro Torcita does not
deny having taken alcoholic drink;
However, not to the point of
drunkness; The Board is more
inclined to believe this allegation for
no sane person will risks the life of a
member of his family by deliberately
driving when he is mentally and
physically incapable; Further,
C/Insp. Torcita was able to drive
from Victorias to Cadiz City, a
distance of forty kilometers, on a
dark night and raining and was able
to avoid collision of the vehicles
involved by sheer reflex action
despite the admitted fact that his tire
hit the shoulder of the road;
Further, at the time Chief Inspector
Torcita entered the compound he
was fully aware of the presence of
armed men and reacted to this by
exercising prudence while
approaching the compound of Hda.
Aimee; The foregoing facts would
show that C/Insp. Torcita was in full
command of his senses and was not
affected by the numbing effect of
alcohol for a drunk person does not
show any caution and behaves
irrationaly."
The Board did not find sufficient
evidence to establish that Torcita
threatened anybody with a gun, nor
that a serious confrontation took
place between the parties. The Board
also found that there was no
sufficient evidence that the urinating
incident took place, and held that the
charges of violation of domicile and
illegal search were not proven. The
Board found that Lazaro Torcita was
"in the performance of his official
duties when the incident happened;
however, he committed a breach of
internal discipline by taking
alcoholic drinks while in the
performance of same. The
dispositive portion of the decision of
the Board reads: Juris sc
"WHEREFORE, in view of the
foregoing, the Complaint for
CONDUCT UNBECOMING OF A
POLICE OFFICER under Memo
Cir. Nr. 92-006 pursuant to Sec. 42,
RA 6975, be DISMISSED for lack
of sufficient evidence, however finds
C/Insp. Lazaro R. Torcita to have
committed SIMPLE
IRREGULARITY IN THE
PERFORMANCE OF DUTY under
Sec. 41, RA 6975, in relation to
NAPOLCOM Memo Cir. Nr. 91-002
and is hereby ORDERED
SUSPENDED for twenty days (20)
and forfeiture of salary for the same
period of time effective upon receipt
of this Decision under Rule 7,
Section 2, Sub-par. b of the same
Memo Circular."
Torcita appealed his conviction to
the Regional Appellate Board of the
PNP, Region VI, Iloilo City, but the
appeal was dismissed for lack of
jurisdiction; Thus,
"Under the applicable provisions of
Section 45 of R. A. 6975, however,
the disciplinary action imposed by
the Regional Director upon a PNP
member shall be final and executory
except those involving demotion in
rank or dismissal from the service.
The appealed decision being that of
suspension from the service with
corresponding forfeiture of pay only
the same is not subject to review by
this Board."[3]
42

Whereupon, C/Insp. Torcita filed a
petition for certiorari in the regional
trial court of Iloilo City, Branch 31,
questioning the legality of the
conviction of an offense for which he
was not charged, "which conviction
is a nullity because of the lack of
procedural due process of law."
Public respondent filed a motion to
dismiss, which was denied. The
regional trial court granted the
petition for certiorari and annulled
the dispositive portion of the
questioned decision insofar as it
found Torcita guilty of simple
irregularity in the performance of
duty. Misj uris
Public respondent appealed from the
above-mentioned decision of the
regional trial court, by petition of
review to the Court of Appeals,
which affirmed the same for the
reason that the respondent could not
have been guilty of irregularity
considering that "the twelve (12)
cases treated as Conduct
Unbecoming of a Police Officer
were eventually dismissed."
The instant petition for review on
certiorari under Rule 45 seeks the
reversal of the aforesaid decision of
the Court of Appeals on the
following grounds:
"1.......THE OFFENSE OF "SIMPLE
IRREGULARITY IN THE
PERFORMANCE OF DUTY" IS
NECESSARILY INCLUDED IN
THE CHARGE OF "CONDUCT
UNBECOMING OF A POLICE
OFFICER."
2.......THE DECISION OF THE
SUMMARY DISMISSAL BOARD
(SDB) AND THE NAPOLCOM
REGIONAL APPELLATE BOARD
HAS BECOME FINAL AND
EXECUTORY."[4]
The petitioners submit that the
offense of "Conduct Unbecoming of
a Police Officer" is broad enough to
include any act of an officer which
tends to bring dishonor and disgrace
to the PNP organization, and Simple
Irregularity in the Performance of
Duty is one act which brings such
disgrace and dishonor as
contemplated by law. Moreover, the
dismissal has become final and
executory and the trial court erred
when it proceeded with the petition
in violation of the doctrine of
primary jurisdiction.
In his comment, respondent Torcita
insists that his right to due process of
law was "corrosively abridged and
impaired", and pleads for an
affirmance of the decision of the
Court of Appeals.
The appeal has no merit. The Court
of Appeals did not err in affirming
the decision of the trial court
granting the petition for certiorari.
The administrative disciplinary
machinery for dealing with
complaints or charges against any
member of the Philippine National
Police (PNP) is laid down in
Republic Act No. 6975, otherwise
known as the "Department of the
Interior and Local Government Act
of 1990." This law defines the
summary dismissal powers of the
PNP Chief and Regional Directors,
among others in cases, "where the
respondent is guilty of conduct
unbecoming of a police officer."[5]
Memorandum Circular No. 92-006
prescribes the "Rules and
Regulations in the conduct of
summary dismissal proceedings
against erring PNP members" and
defines conduct unbecoming of a
police officer under Section 3 (c),
Rule II, as follows:
"Conduct unbecoming of a police
officer" refers to any behavior or
action of a PNP member, irrespective
of rank, done in his official capacity,
which, in dishonoring or otherwise
disgracing himself as a PNP
member, seriously compromise his
character and standing as a
gentleman in such a manner as to
indicate his vitiated or corrupt state
of moral character; it may also refer
to acts or behavior of any PNP
member in an unofficial or private
capacity which, in dishonoring or
disgracing himself personally as a
gentleman, seriously compromises
his position as a PNP member and
exhibits himself as morally unworthy
to remain as a member of the
organization." New miso
On the other hand, the acts
constituting "simple irregularity in
the performance of duty" are defined
in Memorandum Circular No. 91-
002. It is a light offense, incurred,
among others, by a member of the
PNP who shall, among others, be
found to "have the odor or smell of
alcohol on his breath while on duty,
or possess alcoholic beverages on his
person, police vehicle, post or
office." (Sec. 2.A, Rule VI)
As above-stated, the Summary
Dismissal Board absolved the
C/Insp. Torcita of the consolidated
charge of "conduct unbecoming of a
police officer" but found him guilty
of simple irregularity in the
performance of duty under Sec. 41,
R.A. No. 6975, in relation to
Napolcom Memorandum Circular
No. 91-002 and imposed a penalty of
suspension for twenty (20) days and
forfeiture of salary for the same
period.
We are unable to sustain the theory
of the petitioners that the definition
of "conduct unbecoming of a police
officer" as earlier granted, is broad
enough to include any act of an
officer which tends to bring dishonor
43
and disgrace to the PNP
organization, and that there is "no
legal prohibition" which would
prevent the Summary Dismissal
Board from finding petitioner guilty
of the lesser offense. While the
definition of the more serious
offense is broad, and almost all-
encompassing a finding of guilt for
an offense, no matter how light, for
which one is not properly charged
and tried cannot be countenanced
without violating the rudimentary
requirements of due process.
The series of twelve complaints filed
against C/Insp. Torcita were solely
based on the incident that occurred
on April 26, 1994 at about 11:00
o'clock in the evening, wherein
Torcita, who was off-duty and was in
civilian clothes, riding in his private
vehicle with members of his family,
chased another vehicle which
overtook his car in a reckless manner
and in violation of the Traffic Code;
the hot pursuit ended at the Hacienda
Aimee, where he allegedly entered
the place without lawful warrant and
while inside, belligerently shouted
invectives, challenging everyone to a
fight, pointed his gun at somebody
and urinated in full view of the
persons therein. The Dismissal
Board found the above charges
unsubstantiated and held that Torcita
was in the performance of official
duty when the incidents happened.
"However, he committed breach of
internal discipline by taking
alcoholic drinks while in the
performance of same."
It is glaringly apparent from a
reading of the titles of the twelve
administrative cases filed against
C/Insp. Torcita, earlier quoted, that
none of the charges or offenses
mentioned or made reference to the
specific act of being drunk while in
the performance of official duty. The
records do not bear out the specific
acts or conduct constituting the
charge/offense in the twelve cases
which were consolidated at the pre-
hearing conference into a single case
of "Conduct Unbecoming of a Police
Officer." Thus, the Board defined the
issue before the Board as "whether
the respondent is guilty of conduct
unbecoming of a police officer under
Republic Act 6975, as implemented
by Memorandum Circular No. 92-
006 of the National Police
Commission under Rule II, Section
3, Paragraph c, committed though a
series of illegal acts consisting of
grave threats, illegal search, abuse of
authority, violation of domicile or
violation of Comelec Gunban."
Notably, there is no indication or
warning at all in the summary
dismissal proceedings that C/Insp.
Torcita was also being charged with
breach of internal discipline
consisting of taking alcoholic drinks
while in the performance of his
duties. Acct mis
The omission is fatal to the validity
of the judgment finding him guilty of
the offense for which he was not
notified nor charged. Summary
dismissal proceedings are governed
by specific requirements of
notification of the charges together
with copies of affidavits and other
attachments supporting the
complaints, and the filing of an
answer, together with supporting
documents. It is true that consistent
with its summary nature, the duration
of the hearing is limited, and the
manner of conducting the hearing is
summary, in that sworn statements
may take the place of oral
testimonies of witnesses, cross-
examination is confined only to
material and relevant matters, and
prolonged arguments and dilatory
proceedings shall not be entertained.
(Section 4, Memorandum Circular
No. 92-006). However, notification
of the charges contemplates that
respondent be informed of the
specific charges against him. Torcita
was entitled to know that he was
being charged with being drunk
while in the performance of duty, so
that he could traverse the accusation
squarely and adduce evidence in his
defense. Although he was given an
opportunity to be heard on the
multiple and broad charges initially
filed against him, the absence of
specification of the offense for which
he was eventually found guilty is not
a proper observance of due process.
There can be no short-cut to the legal
process (Alonte vs. Savellano Jr.,
287 SCRA 245).
It is a requirement of due process
that the parties be informed of how
the litigation was decided with an
explanation of the factual and legal
reasons that led to the conclusions of
the Court (ABD Overseas Manpower
Corp. vs. NLRC, 286 SCRA 454 ).
Memorandum Circular No. 92-006
specifically prescribes that the
decision shall contain "a brief
statement of the material facts and
the findings of the summary
dismissal authority as well as the
disposition thereof" (Sec. 6). The
cursory conclusion of the Dismissal
Board that Torcita "committed
breach of internal discipline by
taking drinks while in the
performance of same" should have
been substantiated by factual
findings referring to this particular
offense. As it turned out, the
dismissal Board believed his
allegation that he was not drunk and
found that he was in full command
of his senses where he tried to
apprehend the driver of the maroon
Mazda pick-up. Although Torcita did
not deny that he had taken a shot of
alcoholic drink at the party which he
attended before the incident, the
records show that he was then off-
duty and the party was at the
Municipality of Victorias, which was
outside of his area of police
jurisdiction. On the other hand, the
hot pursuit incident occurred while
he was on in his way home to Cadiz
City with the members of his family.
As observed by the Dismissal Board
itself, the hot pursuit was motivated
by the duty "inherent to the position
as Chief of Police of Cadiz City and
as Deputy of the Land
Transportation Office to enforce
traffic rules and regulations, to
prevent chaos and accidents in roads
and highways" (Decision, p. 76). The
Court of Appeals correctly pointed
out that even if he was prosecuted
44
for irregular performance of duty, he
could not have been found to have
the odor or smell of alcohol while in
the performance of duty because he
was not on duty at the time that he
had a taste of liquor; he was on a
private trip fetching his wife.
Premises considered, we hold that
the Court of Appeals correctly found
that the decision of the petitioners
Board was rendered without or in
excess of jurisdiction, as respondent
Torcita was found guilty of an
offense for which he was not
properly charged. A decision is void
for lack of due process if, as a result,
a party is deprived of the opportunity
of being heard (Palu-ay vs. CA, 293
SCRA 358). A void judgment never
acquires finality (Heirs of Mayor
Nemencio Galvez vs. CA 255 SCRA
672; Fortich vs. Corona, 298 SCRA
678). Hence, aforementioned
decision cannot be deemed to have
become final and executory. Mis act
WHEREFORE, the assailed decision
dated September l, 1997 of the Court
of Appeals is AFFIRMED and the
instant petition is DISMISSED.
SO ORDERED.
EN BANC
[G.R. No. 130487. June 19, 2000]
THE PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs.
ROBERTO ESTRADA, accused-
appellant.
DECISION
PUNO, J.:
This is an automatic review of the
death penalty imposed on accused-
appellant by the Regional Trial
Court, Branch 44, Dagupan City in
Criminal Case No. 94-00860-D.[1]
We nullify the proceedings in the
court a quo and remand the case for
proper disposition.
In an Information dated December
29, 1994, accused-appellant Roberto
Estrada y Lopez was charged with
the crime of murder for the killing of
one Rogelio P. Mararac, a security
guard. The Information reads:
That on or about the 27th day of
December 1994 in the City of
Dagupan, Philippines and within the
jurisdiction of this Honorable Court,
the above-named accused,
ROBERTO ESTRADA Y LOPEZ,
being then armed with a butchers
knife, with intent to kill one
ROGELIO P. MARARAC with
treachery and committed in a holy
place of worship, did then and there,
wilfully, unlawfully and criminally,
attack, assault and use personal
violence upon the latter by stabbing
him, hitting him on vital parts of his
body with the said weapon, thereby
causing his death shortly thereafter
due to Cardiorespiratory Arrest,
Massive Intrathoracic Hemorrhage,
Stab Wound as per Autopsy Report
and Certificate of Death both issued
by Dr. Tomas G. Cornel, Assistant
City Health Officer, this City, to the
damage and prejudice of the legal
heirs of said deceased ROGELIO P.
MARARAC in the amount of not
less than FIFTY THOUSAND
PESOS (P50,000.00), Philippine
currency, and other consequential
damages.
Contrary to Article 248 of the
Revised Penal Code.
Dagupan City, Philippines,
December 29, 1994.[2]
At the arraignment on January 6,
1995, accused-appellants counsel,
the Public Attorneys Office, filed an
Urgent Motion to Suspend
Arraignment and to Commit
Accused to Psychiatric Ward at
Baguio General Hospital. It was
alleged that accused-appellant could
not properly and intelligently enter a
plea because he was suffering from a
mental defect; that before the
commission of the crime, he was
confined at the psychiatric ward of
the Baguio General Hospital in
Baguio City. He prayed for the
suspension of his arraignment and
the issuance of an order confining
him at the said hospital.[3]
The motion was opposed by the City
Prosecutor. The trial court, motu
proprio, propounded several
questions on accused-appellant.
Finding that the questions were
understood and answered by him
intelligently, the court denied the
motion that same day.[4]
The arraignment proceeded and a
plea of not guilty was entered by the
court on accused-appellants
behalf.[5]
The prosecution presented four (4)
witnesses, namely: (1) Dr. Tomas
Cornel, the Assistant Health Officer
of Dagupan City who issued the
death certificate and conducted the
autopsy on the victim; (2) Crisanto
Santillan, an eyewitness to the
incident; (3) SPO1 Conrado
Francisco, one of the policemen who
apprehended accused-appellant; and
(4) Rosalinda Sobremonte, the
victims sister. The prosecution
established the following facts:
45
In the morning of December 27,
1994, at the St. Johns Cathedral,
Dagupan City, the sacrament of
confirmation was being performed
by the Roman Catholic Bishop of
Dagupan City on the children of
Dagupan. The cathedral was filled
with more than a thousand people.
At 11:00 A.M., nearing the close of
the rites, the Bishop went down the
altar to give his final blessing to the
children in the front rows. While the
Bishop was giving his blessing, a
man from the crowd went up and
walked towards the center of the
altar. He stopped beside the Bishops
chair, turned around and, in full view
of the Catholic faithful, sat on the
Bishops chair. The man was
accused-appellant. Crisanto
Santillan, who was assisting the
Bishop at the rites, saw accused-
appellant. Santillan approached
accused-appellant and requested him
to vacate the Bishops chair. Gripping
the chairs armrest, accused-appellant
replied in Pangasinese: No matter
what will happen, I will not move
out! Hearing this, Santillan moved
away.[6]
Some of the churchgoers summoned
Rogelio Mararac, the security guard
at the cathedral. Mararac went near
accused-appellant and told him to
vacate the Bishops chair. Accused-
appellant stared intensely at the
guard. Mararac grabbed his
nightstick and used it to tap accused-
appellants hand on the armrest.
Appellant did not budge. Again,
Mararac tapped the latters hand. Still
no reaction. Mararac was about to
strike again when suddenly accused-
appellant drew a knife from his back,
lunged at Mararac and stabbed him,
hitting him below his left throat.
Mararac fell. Accused-appellant
went over the victim and tried to stab
him again but Mararac parried his
thrust. Accused-appellant looked up
and around him. He got up, went to
the microphone and shouted:
Anggapuy nayan dia! (No one can
beat me here!). He returned to the
Bishops chair and sat on it again.
Mararac, wounded and bleeding,
slowly dragged himself down the
altar.[7]
Meanwhile, SPO1 Conrado
Francisco, who was directing traffic
outside, received a report of a
commotion inside the cathedral.
Rushing to the cathedral, SPO1
Francisco saw a man, accused-
appellant, with red stains on his shirt
and a knife in one hand sitting on a
chair at the center of the altar. He ran
to accused-appellant and advised him
to drop the knife. Accused-appellant
obeyed. He dropped the knife and
raised his hands. Thereupon, Chief
Inspector Wendy Rosario, Deputy
Police Chief, Dagupan City, who
was attending the confirmation rites
at the Cathedral, went near accused-
appellant to pick up the knife.
Suddenly, accused-appellant
embraced Chief Inspector Rosario
and the two wrestled with each other.
Chief Inspector Rosario was able to
subdue accused-appellant. The police
came and when they frisked
appellant, they found a leather
scabbard tucked around his waist.[8]
He was brought to the police station
and placed in jail.
In the meantime, Mararac, the
security guard, was brought to the
hospital where he expired a few
minutes upon arrival. He died of
cardio-respiratory arrest, massive,
intra-thoracic hemorrhage, stab
wound.[9] He was found to have
sustained two (2) stab wounds: one
just below the left throat and the
other on the left arm. The autopsy
reported the following findings:
EXTERNAL FINDINGS
1. Stab wound, along the parasternal
line, level of the 2nd intercostal
space, left, 1 x 1 penetrating. The
edge of one side of the wound is
sharp and pointed.
2. Stab wound, antero-lateral aspect,
distal 3rd, arm, left, x x . The edge of
one side of the wound is sharp and
pointed.
INTERNAL FINDINGS
Massive intrathoracic, left,
hemorrhage with perforation of the
upper and lower lobe of the left lung.
The left pulmonary blood vessel was
severely cut.[10]
After the prosecution rested its case,
accused-appellant, with leave of
court, filed a Demurrer to Evidence.
He claimed that the prosecution
failed to prove the crime of murder
because there was no evidence of the
qualifying circumstance of treachery;
that there was unlawful aggression
by the victim when he tapped
accused-appellants hand with his
nightstick; and that accused-
appellant did not have sufficient
ability to calculate his defensive acts
because he was of unsound
mind.[11]
The Demurrer to Evidence was
opposed by the public prosecutor. He
alleged that the accused pretended to
be weak, tame and of unsound mind;
that after he made the first stab, he
furiously continued stabbing and
slashing the victim to finish him off
undeterred by the fact that he was in
a holy place where a religious
ceremony was being conducted; and
the plea of unsound mind had
already been ruled upon by the trial
court in its order of January 6,
1995.[12]
On February 21, 1995, a letter was
sent by Inspector Wilfredo F.
Valdez, Jail Warden of Dagupan
City to the trial court. Inspector
Valdez requested the court to allow
accused-appellant, who was confined
at the city jail, to be treated at the
Baguio General Hospital to
determine whether he should remain
46
in jail or be transferred to some other
institution. The other prisoners were
allegedly not comfortable with
appellant because he had been
exhibiting unusual behavior. He tried
to climb up the jail roof so he could
escape and see his family.[13]
As ordered by the trial court, the
public prosecutor filed a Comment to
the jail wardens letter. He reiterated
that the mental condition of accused-
appellant to stand trial had already
been determined; unless a competent
government agency certifies
otherwise, the trial should proceed;
and the city jail warden was not the
proper person to determine whether
accused-appellant was mentally ill or
not.[14]
In an order dated August 21, 1995,
the trial court denied the Demurrer to
Evidence.[15] Accused-appellant
moved for reconsideration.
While the motion for reconsideration
was pending, on February 26, 1996,
counsel for accused-appellant filed a
Motion to Confine Accused for
Physical, Mental and Psychiatric
Examination. Appellants counsel
informed the court that accused-
appellant had been exhibiting
abnormal behavior for the past
weeks; he would shout at the top of
his voice and cause panic among the
jail inmates and personnel; that
appellant had not been eating and
sleeping; that his co-inmates had
been complaining of not getting
enough sleep for fear of being
attacked by him while asleep; that
once, while they were sleeping,
appellant took out all his personal
effects and waste matter and burned
them inside the cell which again
caused panic among the inmates.
Appellants counsel prayed that his
client be confined at the National
Center for Mental Health in Manila
or at the Baguio General
Hospital.[16] Attached to the motion
were two (2) letters. One, dated
February 19, 1996, was from
Inspector Pedrito Llopis, Jail
Warden, Dagupan City, addressed to
the trial court judge informing him of
appellants irrational behavior and
seeking the issuance of a court order
for the immediate psychiatric and
mental examination of accused-
appellant.[17] The second letter,
dated February 21, 1996, was
addressed to Inspector Llopis from
the Bukang Liwayway Association,
an association of inmates in the
Dagupan City Jail. The letter, signed
by the president, secretary and
adviser of said association, informed
the jail warden of appellants unusual
behavior and requested that
immediate action be taken against
him to avoid future violent incidents
in the jail.[18]
On September 18, 1996, the trial
court denied reconsideration of the
order denying the Demurrer to
Evidence. The court ordered
accused-appellant to present his
evidence on October 15, 1996.[19]
Accused-appellant did not take the
witness stand. Instead, his counsel
presented the testimony of Dr. Maria
Soledad Gawidan,[20] a resident
physician in the Department of
Psychiatry at the Baguio General
Hospital, and accused-appellants
medical and clinical records at the
said hospital.[21] Dr. Gawidan
testified that appellant had been
confined at the BGH from February
18, 1993 to February 22, 1993 and
that he suffered from Schizophrenic
Psychosis, Paranoid
Typeschizophrenia, paranoid,
chronic, paranoid type;[22] and after
four (4) days of confinement, he was
discharged in improved physical and
mental condition.[23] The medical
and clinical records consisted of the
following: (1) letter of Dr. Alfredo
Sy, Municipal Health Officer,
Calasiao, Pangasinan to Dr. Jesus del
Prado, Director, BGH referring
accused-appellant for admission and
treatment after a relapse of his
violent behavior;[24] (2) the clinical
cover sheet of appellant at the
BGH;[25] (3) the consent slip of
appellants wife voluntarily entrusting
appellant to the BGH;[26] (4) the
Patients Record;[27] (5) the Consent
for Discharge signed by appellants
wife;[28] (6) the Summary and
Discharges of appellant;[29] (7)
appellants clinical case history;[30]
(8) the admitting notes;[31] (9)
Physicians Order Form;[32] (10) the
Treatment Form/ medication
sheet;[33] and (11) Nurses
Notes.[34]
The trial court rendered a decision on
June 23, 1997. It upheld the
prosecution evidence and found
accused-appellant guilty of the crime
charged and thereby sentenced him
to death, viz:
WHEREFORE, the court finds
accused Roberto Estrada y Lopez
guilty beyond reasonable doubt of
the crime of Murder and in view of
the presence of the aggravating
circumstance of cruelty which is not
offset by any mitigating
circumstance, the accused is
sentenced to suffer the Death Penalty
and to indemnify the heirs of the
deceased in the amount of
P50,000.00.
The accused is ordered to pay the
sum of P18,870.00 representing
actual expenses and P100,000.00 as
moral damages.
SO ORDERED.[35]
In this appeal, accused-appellant
assigns the following errors:
I
THE LOWER COURT ERRED IN
FINDING ACCUSED-
APPELLANT GUILTY OF THE
47
CRIME CHARGED, DESPITE
CLEAR AND CONVINCING
EVIDENCE ON RECORD,
SUPPORTING HIS PLEA OF
INSANITY.
II
THE LOWER COURT LIKEWISE
ERRED IN HOLDING THAT THE
STABBING TO DEATH OF
ROGELIO MARARAC WAS
ATTENDED WITH TREACHERY
AND AGGRAVATED BY
CRUELTY, GRANTING
ARGUENDO THAT ACCUSED-
APPELLANTS PLEA OF
INSANITY CANNOT BE
CONSIDERED AN EXEMPTING
CIRCUMSTANCE.[36]
The basic principle in our criminal
law is that a person is criminally
liable for a felony committed by
him.[37] Under the classical theory
on which our penal code is mainly
based, the basis of criminal liability
is human free will.[38] Man is
essentially a moral creature with an
absolutely free will to choose
between good and evil.[39] When he
commits a felonious or criminal act
(delito doloso), the act is presumed
to have been done voluntarily,[40]
i.e., with freedom, intelligence and
intent.[41] Man, therefore, should be
adjudged or held accountable for
wrongful acts so long as free will
appears unimpaired.[42]
In the absence of evidence to the
contrary, the law presumes that every
person is of sound mind[43] and that
all acts are voluntary.[44] The moral
and legal presumption under our law
is that freedom and intelligence
constitute the normal condition of a
person.[45] This presumption,
however, may be overthrown by
other factors; and one of these is
insanity which exempts the actor
from criminal liability.[46]
The Revised Penal Code in Article
12 (1) provides:
ART. 12. Circumstances which
exempt from criminal liability.The
following are exempt from criminal
liability:
1. An imbecile or an insane person,
unless the latter has acted during a
lucid interval.
When the imbecile or an insane
person has committed an act which
the law defines as a felony (delito),
the court shall order his confinement
in one of the hospitals or asylums
established for persons thus afflicted,
which he shall not be permitted to
leave without first obtaining the
permission of the same court.
An insane person is exempt from
criminal liability unless he has acted
during a lucid interval. If the court
therefore finds the accused insane
when the alleged crime was
committed, he shall be acquitted but
the court shall order his confinement
in a hospital or asylum for treatment
until he may be released without
danger. An acquittal of the accused
does not result in his outright release,
but rather in a verdict which is
followed by commitment of the
accused to a mental institution.[47]
In the eyes of the law, insanity exists
when there is a complete deprivation
of intelligence in committing the act.
Mere abnormality of the mental
faculties will not exclude
imputability.[48] The accused must
be so insane as to be incapable of
entertaining a criminal intent.[49] He
must be deprived of reason and act
without the least discernment
because there is a complete absence
of the power to discern or a total
deprivation of freedom of the
will.[50]
Since the presumption is always in
favor of sanity, he who invokes
insanity as an exempting
circumstance must prove it by clear
and positive evidence.[51] And the
evidence on this point must refer to
the time preceding the act under
prosecution or to the very moment of
its execution.[52]
To ascertain a persons mental
condition at the time of the act, it is
permissible to receive evidence of
the condition of his mind within a
reasonable period both before and
after that time.[53] Direct testimony
is not required.[54] Neither are
specific acts of derangement
essential to establish insanity as a
defense.[55] Circumstantial
evidence, if clear and convincing,
suffices; for the unfathomable mind
can only be known by overt acts. A
persons thoughts, motives, and
emotions may be evaluated only by
outward acts to determine whether
these conform to the practice of
people of sound mind.[56]
In the case at bar, there is no direct
proof that accused-appellant was
afflicted with insanity at the time he
killed Mararac. The absence of direct
proof, nevertheless, does not entirely
discount the probability that
appellant was not of sound mind at
that time. From the affidavit of
Crisanto Santillan[57] attached to the
Information, there are certain
circumstances that should have
placed the trial court on notice that
appellant may not have been in full
possession of his mental faculties
when he attacked Mararac. It was
highly unusual for a sane person to
go up to the altar and sit on the
Bishops chair while the Bishop was
administering the Holy Sacrament of
Confirmation to children in a
jampacked cathedral. It goes against
normal and ordinary behavior for
appellant, without sufficient
provocation from the security guard,
48
to stab the latter at the altar, during
sacramental rites and in front of all
the Catholic faithful to witness.
Appellant did not flee, or at least
attempt to flee after the stabbing. He
nonchalantly approached the
microphone and, over the public
address system, uttered words to the
faithful which no rational person
would have made. He then returned
to the Bishops chair and sat there as
if nothing happened.
Accused-appellants history of mental
illness was brought to the courts
attention on the day of the
arraignment. Counsel for accused-
appellant moved for suspension of
the arraignment on the ground that
his client could not properly and
intelligently enter a plea due to his
mental condition. The Motion for
Suspension is authorized under
Section 12, Rule 116 of the 1985
Rules on Criminal Procedure which
provides:
Sec. 12. Suspension of
arraignment.The arraignment shall
be suspended, if at the time thereof:
(a) The accused appears to be
suffering from an unsound mental
condition which effectively renders
him unable to fully understand the
charge against him and to plead
intelligently thereto. In such case, the
court shall order his mental
examination and, if necessary, his
confinement for such purpose.
(b) x x x.
The arraignment of an accused shall
be suspended if at the time thereof he
appears to be suffering from an
unsound mental condition of such
nature as to render him unable to
fully understand the charge against
him and to plead intelligently
thereto. Under these circumstances,
the court must suspend the
proceedings and order the mental
examination of the accused, and if
confinement be necessary for
examination, order such confinement
and examination. If the accused is
not in full possession of his mental
faculties at the time he is informed at
the arraignment of the nature and
cause of the accusation against him,
the process is itself a felo de se, for
he can neither comprehend the full
import of the charge nor can he give
an intelligent plea thereto.[58]
The question of suspending the
arraignment lies within the discretion
of the trial court.[59]And the test to
determine whether the proceedings
will be suspended depends on the
question of whether the accused,
even with the assistance of counsel,
would have a fair trial. This rule was
laid down as early as 1917, thus:
In passing on the question of the
propriety of suspending the
proceedings against an accused
person on the ground of present
insanity, the judges should bear in
mind that not every aberration of the
mind or exhibition of mental
deficiency is sufficient to justify
such suspension. The test is to be
found in the question whether the
accused would have a fair trial, with
the assistance which the law secures
or gives; and it is obvious that under
a system of procedure like ours
where every accused person has
legal counsel, it is not necessary to
be so particular as it used to be in
England where the accused had no
advocate but himself.[60] In the
American jurisdiction, the issue of
the accuseds present insanity or
insanity at the time of the court
proceedings is separate and distinct
from his criminal responsibility at
the time of commission of the act.
The defense of insanity in a criminal
trial concerns the defendants mental
condition at the time of the crimes
commission. Present insanity is
commonly referred to as competency
to stand trial[61] and relates to the
appropriateness of conducting the
criminal proceeding in light of the
defendants present inability to
participate meaningfully and
effectively.[62] In competency cases,
the accused may have been sane or
insane during the commission of the
offense which relates to a
determination of his guilt. However,
if he is found incompetent to stand
trial, the trial is simply postponed
until such time as he may be found
competent. Incompetency to stand
trial is not a defense; it merely
postpones the trial.[63]
In determining a defendants
competency to stand trial, the test is
whether he has the capacity to
comprehend his position, understand
the nature and object of the
proceedings against him, to conduct
his defense in a rational manner, and
to cooperate, communicate with, and
assist his counsel to the end that any
available defense may be
interposed.[64] This test is
prescribed by state law but it exists
generally as a statutory recognition
of the rule at common law.[65] Thus:
[I]t is not enough for the x x x judge
to find that the defendant [is]
oriented to time and place, and [has]
some recollection of events, but that
the test must be whether he has
sufficient present ability to consult
with his lawyer with a reasonable
degree of rational understandingand
whether he has a rational as well as
factual understanding of the
proceedings against him.[66]
There are two distinct matters to be
determined under this test: (1)
whether the defendant is sufficiently
coherent to provide his counsel with
information necessary or relevant to
constructing a defense; and (2)
whether he is able to comprehend the
significance of the trial and his
relation to it.[67] The first requisite
is the relation between the defendant
and his counsel such that the
defendant must be able to confer
coherently with his counsel. The
second is the relation of the
defendant vis-a-vis the court
49
proceedings, i.e., that he must have a
rational as well as a factual
understanding of the
proceedings.[68]
The rule barring trial or sentence of
an insane person is for the protection
of the accused, rather than of the
public.[69] It has been held that it is
inhuman to require an accused
disabled by act of God to make a just
defense for his life or liberty.[70] To
put a legally incompetent person on
trial or to convict and sentence him
is a violation of the constitutional
rights to a fair trial[71] and due
process of law;[72] and this has
several reasons underlying it.[73]
For one, the accuracy of the
proceedings may not be assured, as
an incompetent defendant who
cannot comprehend the proceedings
may not appreciate what information
is relevant to the proof of his
innocence. Moreover, he is not in a
position to exercise many of the
rights afforded a defendant in a
criminal case, e.g., the right to
effectively consult with counsel, the
right to testify in his own behalf, and
the right to confront opposing
witnesses, which rights are
safeguards for the accuracy of the
trial result. Second, the fairness of
the proceedings may be questioned,
as there are certain basic decisions in
the course of a criminal proceeding
which a defendant is expected to
make for himself, and one of these is
his plea. Third, the dignity of the
proceedings may be disrupted, for an
incompetent defendant is likely to
conduct himself in the courtroom in
a manner which may destroy the
decorum of the court. Even if the
defendant remains passive, his lack
of comprehension fundamentally
impairs the functioning of the trial
process. A criminal proceeding is
essentially an adversarial proceeding.
If the defendant is not a conscious
and intelligent participant, the
adjudication loses its character as a
reasoned interaction between an
individual and his community and
becomes an invective against an
insensible object. Fourth, it is
important that the defendant knows
why he is being punished, a
comprehension which is greatly
dependent upon his understanding of
what occurs at trial. An incompetent
defendant may not realize the moral
reprehensibility of his conduct. The
societal goal of institutionalized
retribution may be frustrated when
the force of the state is brought to
bear against one who cannot
comprehend its significance.[74]
The determination of whether a
sanity investigation or hearing
should be ordered rests generally in
the discretion of the trial court.[75]
Mere allegation of insanity is
insufficient. There must be evidence
or circumstances that raise a
reasonable doubt[76] or a bona fide
doubt[77] as to defendants
competence to stand trial. Among the
factors a judge may consider is
evidence of the defendants irrational
behavior, history of mental illness or
behavioral abnormalities, previous
confinement for mental disturbance,
demeanor of the defendant, and
psychiatric or even lay testimony
bearing on the issue of competency
in a particular case.[78]
In the case at bar, when accused-
appellant moved for suspension of
the arraignment on the ground of
accuseds mental condition, the trial
court denied the motion after finding
that the questions propounded on
appellant were intelligently answered
by him. The court declared::
xxx
It should be noted that when this
case was called, the Presiding Judge
asked questions on the accused, and
he (accused) answered intelligently.
As a matter of fact, when asked
where he was born, he answered, in
Tayug.
The accused could answer
intelligently. He could understand
the questions asked of him.
WHEREFORE, for lack of merit, the
Urgent Motion to Suspend
Arraignment and to Commit
Accused to Psychiatric Ward at
Baguio General Hospital, is hereby
DENIED.
SO ORDERED.[79]
The fact that accused-appellant was
able to answer the questions asked
by the trial court is not conclusive
evidence that he was competent
enough to stand trial and assist in his
defense. Section 12, Rule 116 speaks
of an unsound mental condition that
effectively renders [the accused]
unable to fully understand the charge
against him and to plead intelligently
thereto. It is not clear whether
accused-appellant was of such sound
mind as to fully understand the
charge against him. It is also not
certain whether his plea was made
intelligently. The plea of not guilty
was not made by accused-appellant
but by the trial court because of his
refusal to plead.[80]
The trial court took it solely upon
itself to determine the sanity of
accused-appellant. The trial judge is
not a psychiatrist or psychologist or
some other expert equipped with the
specialized knowledge of
determining the state of a persons
mental health. To determine the
accused-appellants competency to
stand trial, the court, in the instant
case, should have at least ordered the
examination of accused-appellant,
especially in the light of the latters
history of mental illness.
If the medical history was not
enough to create a reasonable doubt
in the judges mind of accused-
appellants competency to stand trial,
subsequent events should have done
50
so. One month after the prosecution
rested its case, the Jail Warden of
Dagupan City wrote the trial judge
informing him of accused-appellants
unusual behavior and requesting that
he be examined at the hospital to
determine whether he should remain
in jail or be placed in some other
institution. The trial judge ignored
this letter. One year later, accused-
appellants counsel filed a Motion to
Confine Accused for Physical,
Mental and Psychiatric Examination.
Attached to this motion was a second
letter by the new Jail Warden of
Dagupan City accompanied by a
letter-complaint of the members of
the Bukang Liwayway Association
of the city jail. Despite the two (2)
attached letters,[81] the judge
ignored the Motion to Confine
Accused for Physical, Mental and
Psychiatric Examination. The
records are barren of any order
disposing of the said motion. The
trial court instead ordered accused-
appellant to present his evidence.[82]
Dr. Gawidan testified that the illness
of accused-appellant, i.e.,
schizophrenia, paranoid type, is a
lifetime illness and that this requires
maintenance medication to avoid
relapses.[83] After accused-appellant
was discharged on February 22,
1993, he never returned to the
hospital, not even for a check-
up.[84]
Accused-appellant did not take the
witness stand. His counsel
manifested that accused-appellant
was waiving the right to testify in his
own behalf because he was suffering
from mental illness.[85] This
manifestation was made in open
court more than two (2) years after
the crime, and still, the claim of
mental illness was ignored by the
trial court. And despite all the
overwhelming indications of
accused-appellants state of mind, the
judge persisted in his personal
assessment and never even
considered subjecting accused-
appellant to a medical examination.
To top it all, the judge found
appellant guilty and sentenced him to
death!
Section 12, Rule 116 of the 1985
Rules on Criminal Procedure speaks
of a mental examination.[86] The
human mind is an entity, and
understanding it is not purely an
intellectual process but depends to a
large degree upon emotional and
psychological appreciation.[87]
Thus, an intelligent determination of
an accuseds capacity for rational
understanding ought to rest on a
deeper and more comprehensive
diagnosis of his mental condition
than laymen can make through
observation of his overt behavior.
Once a medical or psychiatric
diagnosis is made, then can the legal
question of incompetency be
determined by the trial court. By this
time, the accuseds abilities may be
measured against the specific
demands a trial will make upon
him.[88]
If the mental examination on frustrated murder, entered a plea of
accused-appellant had been promptly guilty to all three charges and was
and properly made, it may have sentenced to death. We found that
served a dual purpose[89] by the accuseds plea was not an
determining both his competency to unconditional admission of guilt
stand trial and his sanity at the time because he was not in full possession
of the offense. In some Philippine of his mental faculties when he killed
cases, the medical and clinical the victim; and thereby ordered that
findings of insanity made he be subjected to the necessary
immediately after the commission of medical examination to determine
the crime served as one of the bases his degree of insanity at the time of
for the acquittal of the accused.[90] commission of the crime.[93]
The crime in the instant case was
committed way back in December
1994, almost six (6) years ago. At
IN VIEW WHEREOF, the decision
this late hour, a medical finding
of the Regional Trial Court, Branch
alone may make it impossible for us
44, Dagupan City in Criminal Case
to evaluate appellants mental
No. 94-00860-D convicting accused-
condition at the time of the crimes
appellant Roberto Estrada and
commission for him to avail of the
sentencing him to death is vacated
exempting circumstance of
and the case is remanded to the court
insanity.[91] Nonetheless, under the
a quo for the conduct of a proper
present circumstances, accused-
mental examination on accused-
appellants competence to stand trial
appellant, a determination of his
must be properly ascertained to
competency to stand trial, and for
enable him to participate in his trial
further proceedings.
meaningfully.
SO ORDERED.
By depriving appellant of a mental
examination, the trial court
effectively deprived appellant of a
fair trial. The trial courts negligence
was a violation of the basic
requirements of due process; and for
this reason, the proceedings before
the said court must be nullified. In
People v. Serafica,[92] we ordered
that the joint decision of the trial
court be vacated and the cases
remanded to the court a quo for
proper proceeding. The accused, who
was charged with two (2) counts of
murder and one (1) count of
51
EN BANC
G.R. No. 84818 December 18,
1989
PHILIPPINE COMMUNICATIONS
SATELLITE CORPORATION,
petitioner,
vs.
JOSE LUIS A. ALCUAZ, as NTC
Commissioner, and NATIONAL
TELECOMMUNICATIONS
COMMISSION, respondents.
Rilloraza, Africa, De Ocampo &
Africa for petitioner.
Victor de la Serna for respondent
Alcuaz.
REGALADO, J.:
This case is posed as one of first
impression in the sense that it
involves the public utility services of
the petitioner Philippine
Communications Satellite
Corporation (PHILCOMSAT, for
short) which is the only one
rendering such services in the
Philippines.
The petition before us seeks to annul
and set aside an Order 1 issued by
respondent Commissioner Jose Luis
Alcuaz of the National
Telecommunications Commission
(hereafter, NTC), dated September 2,
1988, which directs the provisional
reduction of the rates which may be
charged by petitioner for certain
specified lines of its services by
fifteen percent (15%) with the
reservation to make further
reductions later, for being violative
of the constitutional prohibition
against undue delegation of
legislative power and a denial of
procedural, as well as substantive,
due process of law.
The antecedental facts as
summarized by petitioner 2 are not in
dispute. By virtue of Republic Act
No. 5514, PHILCOMSAT was
granted "a franchise to establish,
construct, maintain and operate in
the Philippines, at such places as the
grantee may select, station or stations
and associated equipment and
facilities for international satellite
communications." Under this
franchise, it was likewise granted the
authority to "construct and operate
such ground facilities as needed to
deliver telecommunications services
from the communications satellite
system and ground terminal or
terminals."
Pursuant to said franchise, petitioner
puts on record that it undertook the
following activities and established 5. In 1983, PHILCOMSAT
the following installations: constructed and installed a standard
"B" antenna at Clark Air Field,
Pampanga as a television receive-
only earth station which provides the
1. In 1967, PHILCOMSAT
U.S. Military bases with a 24-hour
established its provisional earth
television service.
station in Pinugay, Rizal.
6. In 1989, petitioner completed the
2. In 1968, earth station standard "A"
installation of a third standard "A"
antenna (Pinugay I) was established.
earth station (Pinugay IV) to take
Pinugay I provided direct satellite
over the links in Pinugay I due to
communication links with the Pacific
obsolescence. 3
Ocean Region (the United States,
Australia, Canada, Hawaii, Guam,
Korea, Thailand, China [PROC],
New Zealand and Brunei) thru the By designation of the Republic of the
Pacific Ocean INTELSAT satellite. Philippines, the petitioner is also the
sole signatory for the Philippines in
the Agreement and the Operating
Agreement relating to the
3. In 1971, a second earth
International Telecommunications
station standard "A"
Satellite Organization (INTELSAT)
antenna(Pinugay III) was
of 115 member nations, as well as in
established. Pinugay II provided
the Convention and the Operating
links with the Indian Ocean Region
Agreement of the International
(major cities in Europe, Middle East,
Maritime Satellite Organization
Africa, and other Asia Pacific
(INMARSAT) of 53 member
countries operating within the
nations, which two global
region) thru the Indian Ocean
commercial telecommunications
INTELSAT satellite.
satellite corporations were
collectively established by various
states in line with the principles set
4. In 1983, a third earth station forth in Resolution 1721 (XVI) of
standard "B" antenna (Pinugay III) the General Assembly of the United
was established to temporarily Nations.
assume the functions of Pinugay I
and then Pinugay II while they were
being refurbished. Pinugay III now
Since 1968, the petitioner has been
serves as spare or reserved antenna
leasing its satellite circuits to:
for possible contingencies.
52
1. Philippine Long Distance
Telephone Company;
2. Philippine Global
Communications, Inc.;
3. Eastern
Telecommunications Phils., Inc.;
4. Globe Mackay Cable and
Radio Corp. ITT; and
5. Capitol Wireless, Inc.
or their predecessors-in-interest. The
satellite services thus provided by
petitioner enable said international
carriers to serve the public with
indispensable communication
services, such as overseas telephone,
telex, facsimile, telegrams, high
speed data, live television in full
color, and television standard
conversion from European to
American or vice versa.
Under Section 5 of Republic Act No.
5514, petitioner was exempt from the
jurisdiction of the then Public
Service Commission, now
respondent NTC. However, pursuant
to Executive Order No. 196 issued
on June 17, 1987, petitioner was
placed under the jurisdiction, control
and regulation of respondent NTC,
including all its facilities and
services and the fixing of rates.
Implementing said Executive Order
No. 196, respondents required
petitioner to apply for the requisite
certificate of public convenience and
necessity covering its facilities and
the services it renders, as well as the
corresponding authority to charge
rates therefor.
Consequently, under date of
September 9, 1987, petitioner filed
with respondent NTC an application
4 for authority to continue operating
and maintaining the same facilities it
has been continuously operating and
maintaining since 1967, to continue
providing the international satellite
communications services it has
likewise been providing since 1967,
and to charge the current rates
applied for in rendering such
services. Pending hearing, it also
applied for a provisional authority so
that it can continue to operate and
maintain the above mentioned
facilities, provide the services and
charge therefor the aforesaid rates
therein applied for.
On September 16, 1987, petitioner
was granted a provisional authority
to continue operating its existing
facilities, to render the services it
was then offering, and to charge the
rates it was then charging. This
authority was valid for six (6)
months from the date of said order. 5
When said provisional authority
expired on March 17, 1988, it was
extended for another six (6) months,
or up to September 16, 1988.
The NTC order now in controversy
had further extended the provisional
authority of the petitioner for another
six (6) months, counted from
September 16, 1988, but it directed
the petitioner to charge modified
reduced rates through a reduction of
fifteen percent (15%) on the present
authorized rates. Respondent
Commissioner ordered said
reduction on the following ground:
The Commission in its on-going
review of present service rates takes
note that after an initial evaluation by
the Rates Regulation Division of the
Common Carriers Authorization
Department of the financial
statements of applicant, there is merit
in a REDUCTION in some of
applicant's rates, subject to further
reductions, should the Commission
finds (sic) in its further evaluation
that more reduction should be
effected either on the basis of a
provisional authorization or in the
final consideration of the case. 6
PHILCOMSAT assails the above-
quoted order for the following
reasons:
1. The enabling act (Executive Order
No. 546) of respondent NTC
empowering it to fix rates for public
service communications does not
provide the necessary standards
constitutionally required, hence there
is an undue delegation of legislative
power, particularly the adjudicatory
powers of NTC;
2. Assuming arguendo that
the rate-fixing power was properly
and constitutionally conferred, the
same was exercised in an
unconstitutional manner, hence it is
ultra vires, in that (a) the questioned
order violates procedural due process
for having been issued without prior
notice and hearing; and (b) the rate
reduction it imposes is unjust,
unreasonable and confiscatory, thus
constitutive of a violation of
substantive due process.
I. Petitioner asseverates that nowhere
in the provisions of Executive Order
No. 546, providing for the creation
of respondent NTC and granting its
rate-fixing powers, nor of Executive
Order No. 196, placing petitioner
under the jurisdiction of respondent
NTC, can it be inferred that
respondent NTC is guided by any
standard in the exercise of its rate-
fixing and adjudicatory powers.
While petitioner in its petition-in-
chief raised the issue of undue
delegation of legislative power, it
subsequently clarified its said
submission to mean that the order
mandating a reduction of certain
rates is undue delegation not of
legislative but of quasi-judicial
power to respondent NTC, the
exercise of which allegedly requires
53
an express conferment by the
legislative body.
Whichever way it is presented,
petitioner is in effect questioning the
constitutionality of Executive Orders
Nos. 546 and 196 on the ground that
the same do not fix a standard for the
exercise of the power therein
conferred.
We hold otherwise.
Fundamental is the rule that
delegation of legislative power may
be sustained only upon the ground
that some standard for its exercise is
provided and that the legislature in
making the delegation has prescribed
the manner of the exercise of the
delegated power. Therefore, when
the administrative agency concerned,
respondent NTC in this case,
establishes a rate, its act must both
be non- confiscatory and must have
been established in the manner
prescribed by the legislature;
otherwise, in the absence of a fixed
standard, the delegation of power
becomes unconstitutional. In case of
a delegation of rate-fixing power, the
only standard which the legislature is
required to prescribe for the
guidance of the administrative
authority is that the rate be
reasonable and just. However, it has
been held that even in the absence of
an express requirement as to
reasonableness, this standard may be
implied. 7
It becomes important then to
ascertain the nature of the power
delegated to respondent NTC and the
manner required by the statute for
the lawful exercise thereof.
Pursuant to Executive Orders Nos.
546 and 196, respondent NTC is
empowered, among others, to
determine and prescribe rates
pertinent to the operation of public
service communications which
necessarily include the power to
promulgate rules and regulations in
connection therewith. And, under
Section 15(g) of Executive Order
No. 546, respondent NTC should be
guided by the requirements of public
safety, public interest and reasonable
feasibility of maintaining effective
competition of private entities in
communications and broadcasting
facilities. Likewise, in Section 6(d)
thereof, which provides for the
creation of the Ministry of
Transportation and Communications
with control and supervision over
respondent NTC, it is specifically
provided that the national economic
viability of the entire network or
components of the communications
systems contemplated therein should
be maintained at reasonable rates.
We need not go into an in-depth
analysis of the pertinent provisions
of the law in order to conclude that
respondent NTC, in the exercise of
its rate-fixing power, is limited by
the requirements of public safety,
public interest, reasonable feasibility
and reasonable rates, which
conjointly more than satisfy the question need not be preceded by a
requirements of a valid delegation of hearing, not because it was issued
legislative power. pursuant to respondent NTC's
legislative function but because the
assailed order is merely
interlocutory, it being an incident in
II. On another tack, petitioner
the ongoing proceedings on
submits that the questioned order
petitioner's application for a
violates procedural due process
certificate of public convenience;
because it was issued motu proprio,
and that petitioner is not the only
without notice to petitioner and
primary source of data or
without the benefit of a hearing.
information since respondent is
Petitioner laments that said order
currently engaged in a continuing
was based merely on an "initial
review of the rates charged.
evaluation," which is a unilateral
evaluation, but had petitioner been
given an opportunity to present its
side before the order in question was We find merit in petitioner's
issued, the confiscatory nature of the contention.
rate reduction and the consequent
deterioration of the public service
could have been shown and
In Vigan Electric Light Co., Inc. vs.
demonstrated to respondents.
Public Service Commission,9 we
Petitioner argues that the function
made a categorical classification as
involved in the rate fixing-power of
to when the rate-filing power of
NTC is adjudicatory and hence
administrative bodies is quasi-
quasi-judicial, not quasi- legislative;
judicial and when it is legislative,
thus, notice and hearing are
thus:
necessary and the absence thereof
results in a violation of due process.
Moreover, although the rule-making
power and even the power to fix
Respondents admit that the
rates- when such rules and/or rates
application of a policy like the fixing
are meant to apply to all enterprises
of rates as exercised by
of a given kind throughout the
administrative bodies is quasi-
Philippines-may partake of a
judicial rather than quasi-legislative:
legislative character, such is not the
that where the function of the
nature of the order complained of.
administrative agency is legislative,
Indeed, the same applies exclusively
notice and hearing are not required,
to petitioner herein. What is more, it
but where an order applies to a
is predicated upon the finding of
named person, as in the instant case,
fact-based upon a report submitted
the function involved is adjudicatory.
by the General Auditing Office-that
8 Nonetheless, they insist that under
petitioner is making a profit of more
the facts obtaining the order in
54
than 12% of its invested capital,
which is denied by petitioner.
Obviously, the latter is entitled to
cross-examine the maker of said
report, and to introduce evidence to
disprove the contents thereof and/or
explain or complement the same, as
well as to refute the conclusion
drawn therefrom by the respondent.
In other words, in making said
finding of fact, respondent
performed a function partaking of a
quasi-judicial character, the valid
exercise of which demands previous
notice and hearing.
This rule was further explained in the
subsequent case of The Central Bank
of the Philippines vs. Cloribel, et al.
10 to wit:
It is also clear from the authorities
that where the function of the
administrative body is legislative,
notice of hearing is not required by
due process of law (See
Oppenheimer, Administrative Law, 2
Md. L.R. 185, 204, supra, where it is
said: 'If the nature of the
administrative agency is essentially
legislative, the requirements of
notice and hearing are not necessary.
The validity of a rule of future action
which affects a group, if vested
rights of liberty or property are not
involved, is not determined
according to the same rules which
apply in the case of the direct
application of a policy to a specific
individual) ... It is said in 73 C.J.S.
Public Administrative Bodies and
Procedure, sec. 130, pages 452 and
453: 'Aside from statute, the
necessity of notice and hearing in an
administrative proceeding depends
on the character of the proceeding
and the circumstances involved. In
so far as generalization is possible in
view of the great variety of
administrative proceedings, it may
be stated as a general rule that notice
and hearing are not essential to the
validity of administrative action
where the administrative body acts in
the exercise of executive,
administrative, or legislative
functions; but where a public
administrative body acts in a judicial
or quasi-judicial matter, and its acts
are particular and immediate rather
than general and prospective, the
person whose rights or property may
be affected by the action is entitled
to notice and hearing. 11
The order in question which was
issued by respondent Alcuaz no
doubt contains all the attributes of a
quasi-judicial adjudication. Foremost
is the fact that said order pertains
exclusively to petitioner and to no
other. Further, it is premised on a
finding of fact, although patently
superficial, that there is merit in a
reduction of some of the rates
charged- based on an initial
evaluation of petitioner's financial
statements-without affording
petitioner the benefit of an
explanation as to what particular
aspect or aspects of the financial
statements warranted a
corresponding rate reduction. No
rationalization was offered nor were
the attending contingencies, if any,
discussed, which prompted
respondents to impose as much as a
fifteen percent (15%) rate reduction.
It is not far-fetched to assume that
petitioner could be in a better
position to rationalize its rates vis-a-
vis the viability of its business
requirements. The rates it charges
result from an exhaustive and
detailed study it conducts of the
multi-faceted intricacies attendant to
a public service undertaking of such
nature and magnitude. We are,
therefore, inclined to lend greater
credence to petitioner's ratiocination
that an immediate reduction in its
rates would adversely affect its
operations and the quality of its
service to the public considering the
maintenance requirements, the
projects it still has to undertake and
the financial outlay involved.
Notably, petitioner was not even
afforded the opportunity to cross-
examine the inspector who issued the
report on which respondent NTC
based its questioned order.
At any rate, there remains the
categorical admission made by
respondent NTC that the questioned
order was issued pursuant to its
quasi-judicial functions. It, however,
insists that notice and hearing are not
necessary since the assailed order is
merely incidental to the entire
proceedings and, therefore,
temporary in nature. This postulate is
bereft of merit.
While respondents may fix a
temporary rate pending final
determination of the application of
petitioner, such rate-fixing order,
temporary though it may be, is not
exempt from the statutory procedural
requirements of notice and hearing,
as well as the requirement of
reasonableness. Assuming that such
power is vested in NTC, it may not
exercise the same in an arbitrary and
confiscatory manner. Categorizing
such an order as temporary in nature
does not perforce entail the
applicability of a different rule of
statutory procedure than would
otherwise be applied to any other
order on the same matter unless
otherwise provided by the applicable
law. In the case at bar, the applicable
statutory provision is Section 16(c)
of the Public Service Act which
provides:
Section 16. Proceedings of
the Commission, upon notice and
hearing the Commission shall have
power, upon proper notice and
hearing in accordance with the rules
and provisions of this Act, subject to
the limitations and exceptions
mentioned and saving provisions to
the contrary:
xxx xxx xxx
(c) To fix and determine
individual or joint rates, ... which
shall be imposed, observed and
followed thereafter by any public
service; ...
55

There is no reason to assume that the
aforesaid provision does not apply to
respondent NTC, there being no
limiting, excepting, or saving
provisions to the contrary in
Executive Orders Nos. 546 and 196.
It is thus clear that with regard to
rate-fixing, respondent has no
authority to make such order without
first giving petitioner a hearing,
whether the order be temporary or
permanent, and it is immaterial
whether the same is made upon a
complaint, a summary investigation,
or upon the commission's own
motion as in the present case. That
such a hearing is required is evident
in respondents' order of September
16, 1987 in NTC Case No. 87-94
which granted PHILCOMSAT a
provisional authority "to continue
operating its existing facilities, to
render the services it presently
offers, and to charge the rates as
reduced by them "under the
condition that "(s)ubject to hearing
and the final consideration of the
merit of this application, the
Commission may modify, revise or
amend the rates ..." 12
While it may be true that for
purposes of rate-fixing respondents
may have other sources of
information or data, still, since a
hearing is essential, respondent NTC
should act solely on the basis of the
evidence before it and not on
knowledge or information otherwise
acquired by it but which is not
offered in evidence or, even if so
adduced, petitioner was given no
opportunity to controvert.
Again, the order requires the new
reduced rates to be made effective on
a specified date. It becomes a final
legislative act as to the period during
which it has to remain in force
pending the final determination of
the case. 13 An order of respondent
NTC prescribing reduced rates, even
for a temporary period, could be
unjust, unreasonable or even
confiscatory, especially if the rates
are unreasonably low, since the
utility permanently loses its just
revenue during the prescribed period.
In fact, such order is in effect final
insofar as the revenue during the
period covered by the order is
concerned. Upon a showing,
therefore, that the order requiring a
reduced rate is confiscatory, and will
unduly deprive petitioner of a
reasonable return upon its property, a
declaration of its nullity becomes
inductible, which brings us to the
issue on substantive due process.
III. Petitioner contends that the rate
reduction is confiscatory in that its
implementation would virtually
result in a cessation of its operations
and eventual closure of business. On
the other hand, respondents assert
that since petitioner is operating its
communications satellite facilities
through a legislative franchise, as
such grantee it has no vested right
therein. What it has is merely a
privilege or license which may be
revoked at will by the State at any
time without necessarily violating
any vested property right of herein
petitioner. While petitioner concedes
this thesis of respondent, it counters
that the withdrawal of such privilege
should nevertheless be neither
whimsical nor arbitrary, but it must
be fair and reasonable.
There is no question that petitioner is
a mere grantee of a legislative
franchise which is subject to
amendment, alteration, or repeal by
Congress when the common good so
requires. 14 Apparently, therefore,
such grant cannot be unilaterally
revoked absent a showing that the
termination of the operation of said
utility is required by the common
good.
The rule is that the power of the
State to regulate the conduct and
business of public utilities is limited
by the consideration that it is not the
owner of the property of the utility,
or clothed with the general power of
management incident to ownership,
since the private right of ownership
to such property remains and is not
to be destroyed by the regulatory
power. The power to regulate is not
the power to destroy useful and
harmless enterprises, but is the
power to protect, foster, promote,
preserve, and control with due regard
for the interest, first and foremost, of
the public, then of the utility and of
its patrons. Any regulation,
therefore, which operates as an
effective confiscation of private
property or constitutes an arbitrary or
unreasonable infringement of
property rights is void, because it is
repugnant to the constitutional
guaranties of due process and equal
protection of the laws. 15
Hence, the inherent power and
authority of the State, or its
authorized agent, to regulate the rates
charged by public utilities should be
subject always to the requirement
that the rates so fixed shall be
reasonable and just. A commission
has no power to fix rates which are
unreasonable or to regulate them
arbitrarily. This basic requirement of
reasonableness comprehends such
rates which must not be so low as to
be confiscatory, or too high as to be
oppressive. 16
What is a just and reasonable rate is
not a question of formula but of
sound business judgment based upon
the evidence 17 it is a question of
fact calling for the exercise of
discretion, good sense, and a fair,
enlightened and independent
judgment. 18 In determining whether
a rate is confiscatory, it is essential
also to consider the given situation,
requirements and opportunities of the
utility. A method often employed in
determining reasonableness is the
fair return upon the value of the
property to the public utility.
Competition is also a very important
factor in determining the
reasonableness of rates since a
carrier is allowed to make such rates
56
as are necessary to meet competition.
19
A cursory perusal of the assailed
order reveals that the rate reduction
is solely and primarily based on the
initial evaluation made on the
financial statements of petitioner,
contrary to respondent NTC's
allegation that it has several other
sources of information without,
however, divulging such sources.
Furthermore, it did not as much as
make an attempt to elaborate on how
it arrived at the prescribed rates. It
just perfunctorily declared that based
on the financial statements, there is
merit for a rate reduction without any
elucidation on what implications and
conclusions were necessarily
inferred by it from said statements.
Nor did it deign to explain how the
data reflected in the financial
statements influenced its decision to
impose a rate reduction.
On the other hand, petitioner may
likely suffer a severe drawback, with
the consequent detriment to the
public service, should the order of
respondent NTC turn out to be
unreasonable and improvident. The
business in which petitioner is
engaged is unique in that its
machinery and equipment have
always to be taken in relation to the
equipment on the other end of the
transmission arrangement. Any lack,
aging, acquisition, rehabilitation, or
refurbishment of machinery and
equipment necessarily entails a
major adjustment or innovation on
the business of petitioner. As pointed
out by petitioner, any change in the
sending end abroad has to be
matched with the corresponding
change in the receiving end in the
Philippines. Conversely, any in the
receiving end abroad has to be
matched with the corresponding
change in the sending end in the
Philippines. An inability on the part
of petitioner to meet the variegations
demanded be technology could result
in a deterioration or total failure of
the service of satellite
communications.
At present, petitioner is engaged in
several projects aimed at
refurbishing, rehabilitating, and
renewing its machinery and
equipment in order to keep up with
the continuing charges of the times
and to maintain its facilities at a
competitive level with the
technological advances abroad.
There projected undertakings were
formulated on the premise that rates
are maintained at their present or at
reasonable levels. Hence, an undue
reduction thereof may practically
lead to a cessation of its business.
While we concede the primacy of the
public interest in an adequate and
efficient service, the same is not
necessarily to be equated with
reduced rates. Reasonableness in the
rates assumes that the same is fair to
both the public utility and the
consumer.
Consequently, we hold that the
challenged order, particularly on the
issue of rates provided therein, being
violative of the due process clause is
void and should be nullified.
Respondents should now proceed, as
they should heretofore have done,
with the hearing and determination
of petitioner's pending application
for a certificate of public
convenience and necessity and in
which proceeding the subject of rates
involved in the present controversy,
as well as other matter involved in
said application, be duly adjudicated
with reasonable dispatch and with
due observance of our
pronouncements herein.
WHEREFORE, the writ prayed for is
GRANTED and the order of
respondents, dated September 2,
1988, in NTC Case No. 87-94 is
hereby SET ASIDE. The temporary
restraining order issued under our
resolution of September 13, 1988, as
specifically directed against the
aforesaid order of respondents on the
matter of existing rates on
petitioner's present authorized
services, is hereby made permanent.
SO ORDERED.
EMILIO SUNTAY Y
AGUINALDO, petitioner,
vs.
THE PEOPLE OF THE
PHILIPPINES, THE HONORABLE
NICASIO YATCO, as Judge of the
Court of First Instance of Rizal,
Quezon City Branch V, and THE
HONORABLE CARLOS P.
GARCIA, as Secretary for Foreign
Affairs, respondents.
Federico Agrava for petitioner.
Office of the Solicitor, General
Ambrosio Padilla, First Assistant
Solicitor General Guillermo E.
Torres and Solicitor Florencio
Villamor for respondents.
PADILLA, J.:
This is a petition for a writ of
certiorari to annul an order of the
Court of First Instance of Quezon
City directing —
. . . the National Bureau of
Investigation and the Department of
Foreign Affairs for them to take
proper steps in order that the
accused, Emilio Suntay y Aguinaldo,
who is alleged to be in the United
States, may be brought back to the
Philippines, so that he may be dealt
with in accordance with law,
(Exhibit D)
57

and of prohibition to enjoin the
Secretary for Foreign Affairs from
cancelling the petitioner's passport
without previous hearing.
On 26 June 1954, Dr. Antonio
Nubla, father of Alicia Nubla, a
minor of 16 years, filed a verified
complaint against Emilio Suntay in
the Office of the City Attorney of
Quezon City, as follows:
On or about June 21, 1954, the
accused took Alicia Nubla from St.
Paul's Colleges in Quezon City with
lewd design and took her to
somewhere near the U.P. compound
in Diliman, Quezon City and was
then able to have carnal knowledge
of her. Alicia Nubla is a minor of 16
years.
On 15 December 1954, after an
investigation, an Assistant City
Attorney recommended to the City
Attorney of Quezon City that the
complaint be dismissed for lack of
merit. On 23 December 1954
attorney for the complainant
addressed a letter to the City
Attorney of Quezon City wherein he
took exception to the
recommendation of the Assistant
City Attorney referred to and urged
that a complaint for seduction be
filed against the herein petitioner.
On 10 January 1955 the petitioner
applied for and was granted a
passport by the Department of
Foreign Affairs (No. 5981
[A39184]). On 20 January 1955 the
petitioner left the Philippines for San
Francisco, California, U.S.A., where
he is at present enrolled in school.
On 31 January 1955 the offended girl
subscribed and swore to a complaint
charging the petitioner with
seduction which was filed in the
Court of First Instance of Quezon
City after preliminary investigation
had been conducted (crim. case No.
Q-1596, Exhibit B). On 9 February
1955 the private prosecutor filed a
motion praying the Court to issue an
order "directing such government
agencies as may be concerned,
particularly the National Bureau of
Investigation and the Department of
Foreign Affairs, for the purpose of
having the accused brought back to
the Philippines so that he may be
dealt with in accordance with law."
(Exhibit C.) On 10 February 1955
the Court granted the motion
(Exhibit D). On 7 March 1955 the
respondent Secretary cabled the
Ambassador to the United States
instructing him to order the Consul
General in San Francisco to cancel
the passport issued to the petitioner
and to compel him to return to the
Philippines to answer the criminal
charges against him. "The Embassy
was likewise directed to make
representation with the State
Department that Emilio Suntay's
presence outside the Philippines is
considered detrimental to the best
interest of this Government, that his
passport has been withdrawn, and
that he is not considered under the
protection of the Philippines while
abroad." (Exhibit E.) However, this
order was not implemented or
carried out in view of the
commencement of this proceedings
in order that the issues raised may be
judicially resolved. On 5 July 1955
counsel for the petitioner wrote to
the respondent Secretary requesting
that the action taken by him be
reconsidered (Exhibit F), and filed in
the criminal case a motion praying
that the respondent Court reconsider
its order of 10 February 1955
(Exhibit G). On 7 July 1955 the
respondent Secretary denied
counsel's request (Exhibit H) and on
15 July 1955 the Court denied the
motion for reconsideration (Exhibit
I). Hence this petition.
The petitioner contends that as the
order of the respondent Court
directing the Department of Foreign
Affairs "to take proper steps in order
that the" petitioner "may be brought
back to the Philippines, so that he
may be brought back to the
Philippines, so that he may default
with in accordance with law," may
be carried out only "through the
cancellation of his passport," the said
order is illegal because "while a
Court may review the action of the
Secretary of Foreign Affairs in
cancelling a passport and grant relief
when the Secretary's discretion is
abused, the court cannot, in the first
instance, take the discretionary
power away from the Secretary and
itself order a passport to be
cancelled."
The petitioner contends that as the
order of the respondent Court
directing the department of Foreign
Affairs "to take proper steps in order
that the" petitioner "may be brought
back to the Philippines, so that he
may be dealt with in accordance with
law," may be carried out only
"through the cancellation of his
passport," the said order is illegal
because 'while a Court may review
the action of the Secretary of Foreign
Affairs in cancelling a passport and
grant relief when the Secretary's
discretion is abused, the court
cannot, in the first instance, take the
discretionary power away from the
Secretary and itself order a passport
to be cancelled." The petitioner
further contends that while the
Secretary for Foreign Affairs has
discretion in the cancellation of
passports, "such discretion cannot be
exercised until after hearing,"
because the right to travel or stay
abroad is a personal liberty within
the meaning and protection of the
Constitution and hence he cannot be
deprived of such liberty without due
process of law.
The petitioner's contention cannot be
sustained. The petitioner is charged
with seduction. And the order of the
respondent Court directing the
Department of Foreign Affairs "to
take proper steps in order that the
accused . . . may be brought back to
the Philippines, so that he may be
dealt with in accordance with law,"
58
is not beyond or in excess of its
jurisdiction.
When by law jurisdiction is
conferred on a court or judicial
officer, all auxiliary writs, processes
and other means necessary to carry it
into effect may be employed by such
court or officer; and if the procedure
to be followed in the exercise of such
jurisdiction is not specifically
pointed out by these rules, any
suitable process or mode of
proceeding may be adopted which
appears most conformable to the
spirit of said rules. (Section 6, Rule
124.)
Moreover, the respondent Court did
not specify what step the respondent
Secretary must take to compel the
petitioner to return to the Philippines
to answer the criminal charge
preferred against him.
Section 25, Executive Order No. 1,
series of 1946, 42 Off. Gaz, 1400,
prescribing rules and regulations for
the grant and issuance of passports,
provides that —
The Secretary of Foreign Affairs as
well as ally diplomatic or consular
officer duly authorized by him, is
authorized, in his discretion, to
refuse to issue a passport for use
only in certain countries, to withdraw
or cancel a passport already issued,
and to withdraw a passport for the
purpose its validity or use in certain necessary if the reason for the passport already issued or refusal to
countries. (Emphasis supplied.) withdrawal or cancellation of the issue a passport applied for, was on
passport were not clear but doubtful. the vague reason that the continued
But where the holder of a passport is possession or the issuance thereof
facing a criminal a charge in our would be contrary to the best interest
True, the discretion granted, to the
courts and left the country to evade of the United States.
Secretary for Foreign Affairs to
criminal prosecution, the Secretary
withdraw or cancel a passport
for Foreign Affairs, in the exercise of
already issued may not be exercised
his discretion to revoke a passport
at whim. But here the petitioner was The petition is denied, with costs
already issued, cannot be held to
hailed to Court to answer a criminal against the petitioner.
have acted whimsically or
charge for seduction and although at
capriciously in withdrawing and
first all Assistant City Attorney
cancelling such passport. Due
recommended the dismissal of the
process does not necessarily mean or
complaint previously subscribed and
require a hearing. When discretion is
sworn to by the father of the
exercised by an officer vested with it
offended girl, yet the petitioner knew
upon an undisputed fact, such as the
that no final action had been taken
filing of a serious criminal charge
by the City Attorney of Quezon City
against the passport holder, hearing
as the case was still under study. And
maybe dispensed with by such
as the Solicitor General puts it, "His
officer as a prerequisite to the
suddenly leaving the country in such
cancellation of his passport; lack of
a convenient time, can reasonably be
such hearing does not violate the due
interpreted to mean as a deliberate
process of law clause of the
attemption his part to flee from
Constitution; and the exercise of the
justice, and, therefore, he cannot now
discretion vested in him cannot be
be heard to complain if the strong
deemed whimsical and capricious of
arm of the law should join together
because of the absence of such
to bring him back to justice." In
hearing. If hearing should always be
issuing the order in question, the
held in order to comply with the due
respondent Secretary was convinced
process of clause of the Constitution,
that a miscarriage of justice would
then a writ of preliminary injunction
result by his inaction and as he
issued ex parte would be violative of
issued it in the exercise of his sound
the said clause.
discretion, he cannot be enjoined
from carrying it out.
In the cases of Bauer vs. Acheson,
106 F. Supp. 445; Nathan, vs.
Counsel for the petitioner insists that
Dulles, 129 F. Supp. 951; and
his client should have been granted a
Schachtman vs. Dulles No. 12406,
"quasi-judicial hearing" by the
23 June 1955, all decided by the
respondent Secretary before
States Court of Appeals for the
withdrawing or cancelling the
district of Columbia, cited by the
passport issued to him. Hearing
petitioner, the revocation of a
would have been proper and
59
EN BANC
G.R. No. L-18365 May 31,
1963
GEORGE DE BISSCHOP,
petitioner-appellee,
vs.
EMILIO L. GALANG, in his
capacity as Commissioner of
Immigration, respondent-appellant.
Engracio Fabre for petitioner-
appellee.
Office of the Solicitor General for
respondent-appellant.
REYES, J.B.L., J.:
Appeal on questions of law from an
order issued on 27 March 1961, in
Civil Case No. 41477 of the Court of
First Instance of Manila (Judge
Antonio Canizares, presiding) the
dispositive portion of which reads:
IN VIEW OF ALL THE
FOREGOING CONSIDERATIONS,
and for the proper determination of
the case of herein petitioner, the
Court hereby grants the petition for
prohibition and orders respondent
Commissioner of Immigration to
desist and refrain from arresting and
expelling the petitioner from the
Philippines unless and until proper
and legal proceedings are conducted
by the Board of Commissioners of
the Bureau of Immigration in
connection with the Application for
extension of stay filed by petitioner
with said Board.
The facts are not disputed.
Petitioner-appellee George de
Bisschop, an American citizen, was
allowed to stay in this country for
three years, expiring 1 August 1959,
as the prearranged employee of the
Bissmag Production, Inc., of which
he is president and general manager.
He applied for extension of stay with
the Bureau of Immigration, in a letter
dated 10 July 1959. In view,
however, of confidential and
damaging reports (Exhibits P, Q, and
R) of Immigration Officer Benjamin
de Mesa to the effect that the
Bissmag Production, Inc., is more of
a gambling front than the enterprise
for promotion of local and imported
shows that it purports to be, and that
de Bisschop is suspect of having
evaded payment of his income tax,
the Commissioner of Immigration, in
a communication of Customs of
Iloilo demanded from petitioner the
paytion of 10 September 1959,
advised him that his application for
extension of stay as a prearranged
employee has been denied by the
Board of Commissioners, and that he
should depart within 5 days.
Thereafter, counsel of de Bisschop
requested for a copy of the adverse
decision said Board, but the legal
officer of the Bureau of Immigration
replied, on 11 September 1959, in
this tenor:
In reply to yours of even date
requesting that you furnished copy of
the decision, order or resolution of
the Board of Commissioners denying
the application for extension of stay
of Mr. GEORGE DE BISSCHOP,
please be advised that, pursuant to
immigration practice and procedure
and as is usual in such cases where
the result is a vote for denial, for
reason of practicability and
expediency, no formal decision,
order resolution is promulgated by
the Board. The denial of the petition
for extension was expressed by the
majority members of the Board as
follows:
For denial, Talabis, 8-24-59;
O.K. for extension, De la Rosa,
September 9;
Denial, Galang, 9-10.
Thereafter, Mr. Bisschop was simply
advised of said denial as per letter of
this Office dated September 10,
1959.
In view thereof, you and your client
are advised anew that Mr. Bisschop
is hereby required to depart within
five (5) days of this notice.
No request for reinvestigation was
made with the Bureau of
Immigration. Instead, to forestall his
arrest and the filing of the
corresponding deportation
proceedings, de Bisschop filed the
present case on 18 September 1959.
Pending resolution of the main case
for prohibition, a writ of preliminary
injunction was issued ex-parte by the
court a quo on the same day ordering
herein respondent-appellant to desist
from arresting and detaining
petitioner-appellee. During the
hearing, only documentary evidence
were presented.
In his brief, appellant Commissioner
raises two main issues: That the
lower court erred (a) in holding that
the Commissioners of Immigration
are required by law to conduct
formal hearings on all applications
for extension of stay of aliens, and
(b) in ruling that said Commissioners
are enjoined to promulgate written
decisions in such cases.
After a careful study of the case, we
fully agree with appellant's
contention on several grounds.
Wherefore, the parties respectfully
pray that the foregoing stipulation of
60
facts be admitted and approved by
this Honorable Court, without
prejudice to the parties adducing
other evidence to prove their case not
covered by this stipulation of facts.
1äwphï1.ñët
The administration of immigration
laws is the primary and exclusive
responsibility of the Executive
branch of the government. Extension
of stay of aliens is purely
discretionary on the part of the
immigration authorities. Since
Commonwealth Act No. 613,
otherwise known as the Philippine
Immigration Act of 1940, is silent as
to the procedure to be followed in
these cases, we are inclined to
uphold the argument that courts have
no jurisdiction to review the purely
administrative practice of
immigration authorities of not
granting formal hearings in certain
cases as the circumstances may
warrant, for reasons of practicability
and expediency. This would not
violate the due process clause if we
take into account that, in this
particular case, the letter of
appellant-commissioner advising de
Bisschop to depart in 5 days is a
mere formality, a preliminary step,
and, therefore, far from final,
because, as alleged in paragraph 7 of
appellant's answer to the complaint,
the "requirement to leave before the
start of the deportation proceedings
is only an advice to the party that
unless he departs voluntarily, the
State will be compelled to take steps
for his expulsion". It is already a
settled rule in this jurisdiction that a
day in court is not a matter of right in word "decision", as employed in this adequate remedy (Section 2, Rule
administrative proceedings. section, obviously refers to the 67, Rules of Court). This Court has
number of "votes" necessary to already ruled that "the use of habeas
constitute the decision of the said corpus to test the legality of aliens'
Board. The Sampaguita Shoe case confinement and proposed expulsion
The fact should not be lost sight of
(G. R. No. L-10285, 14 Jan. 1958), from the Philippines is now a settled
that we are dealing with an
which was taken into account by the practice" (Lao Tang Bun v. Fabre, 81
administrative proceeding and not
lower court, is not applicable to the Phil. 682, 683). This is because
with a judicial proceeding. As Judge
case at bar; it applies to judicial habeas corpus, aside from being
Cooley, the leading American writer
decisions, as provided in Section 1, thorough and complete, affords
on Constitutional Law, has well said,
Rule 35, of the Rules of Court. On prompt relief from unlawful
due process of law is not necessarily
the other hand, as pointed out in imprisonment of any kind, and under
judicial process; much of the process
appellant's brief, where the intention all circumstances. It reaches the facts
by means of which the Government
of the lawmaker is otherwise, the affecting jurisdiction, or want of
is carried on, and the order of society
immigration laws specifically power, by the most direct method,
maintained, is purely executive or
enumerate when the decisions of the and at once releases the applicant
administrative, which is as much due
Board of Commissioners shall be in from restraint when it is shown to be
process of law, as is judicial process.
writing, to wit: (1) in cases of appeal unauthorized (cf. People ex rel.
While a day in court is a matter of
from a decision of the Board of Livingston v. Wyatt, 186 N.Y. 383;
right in judicial proceedings, in
Special Inquiry as to matters of 79 N.E. 330). And it has already
administrative proceedings, it is
admission or exclusion of aliens, as been held by a long line of American
otherwise since they rest upon
provided in Section 27 (c) of the decisions that the existence of this
different principles. . . . In certain
Immigration Act; and (2) the adequate remedy by habeas corpus
proceedings, therefore, of all
decision of the Board of will bar the issuance of a writ of
administrative character, it may be
Commissioners in cases of prohibition.
stated, without fear of contradiction,
deportation under Section 37,
that the right to a notice and hearing
paragraphs (a) and (c). But there is
are not essential to due process of
nothing in the immigration law
law. (Cornejo vs. Gabriel and It has been repeatedly decided by the
which provides that the Board of
Provincial Board of Rizal, 41 Phil. Supreme Court that the writ of
Commissioners must render
188, 192-194) habeas corpus is a proper remedy for
decisions on petitioners for extension
reviewing proceedings for the
of stay.
deportation of aliens and to ascertain
whether jurisdiction has been,
With respect to the contention that
therein exceeded. United States v.
the decision of the Board of
Finally, though not brought out in Jung Ah Lung, 124 U.S. 621, 8 S.
Commissioners on matters of
appellant's brief there is another Ct. 663, 31 L. Ed. 591; Chin Yow v.
petition for extension of stay of
reason why prohibition will not lie United States, 208 U.S. 8, 28 S. Ct.
aliens should be promulgated in
herein. Prohibition is not favored by 201, 62 L. Ed. 369; Ng Fung Ho v.
writing, appellee relies on Section 8
the Courts. The writ should issue White, 259 U.S. 276, 42 S. Ct. 492,
of the Immigration Act, which
with caution, and only in cases of 66 L. Ed. 938; Bilokumsky v. Tod,
provides that in "any case coming
extreme necessity — which 263 U.S. 149, 44 S. Ct. 54, 68 L. Ed.
before the Board of Commissioners,
condition does not obtain in this 221. While in the state courts it is
the decision of any two members
case. Moreover, it will issue only if very generally held that the existence
shall prevail". However, we agree
there is no other plain, speedy, and of an adequate remedy habeas corpus
with the Solicitor General that the
61
will prevent the issuance of a writ of
prohibition. Livingston v. Wyatt, 186
N. Y. 383, 79 N.E. 330, 10 L.R.A.
(N. S.) 159, 9 Ann. Cas. 972; Parks
v. Ryan, 4 N.M. 176, 173 P. 858; In
re Heffner, 16 Okl. Cr. 691, 182 P.
88; State v. Second Judicial District
Court (Nev.) 18 P. (2d) 449; Wessels
v. Superior Court, 200 Cal. 403, 253
P. 135, and in Bedford v. Wingfield,
27 Grat. 329, the Supreme Court of
Virginia said that the writ of
prohibition "issues only in cases of
extreme necessity. . . . It is a
principle of universal application,
and one which lies at the very
foundation of the law of prohibition,
that the jurisdiction is strictly
confined to cases where no other
remedy exists; and it is always a
sufficient reason for withholding the
writ, and the party aggrieved has
another and complete remedy at
law". (Kabadian v. Doak, 65 F. [2d]
202, 205).
WHEREFORE, the order appealed
from is reversed. The petition for
prohibition is dismissed, and the writ
of preliminary injunction issued by
the court a quo is hereby dissolved,
with costs against petitioner-appellee
George de Bisschop. So ordered.
FIRST DIVISION
G.R. No. 81805 May 31, 1988
VAR-ORIENT SHIPPING CO.,
INC. and COMNINOS BROS.,
petitioners,
vs.
TOMAS D. ACHACOSO, in his
capacity as Administrator of
Philippine Overseas Employment
Administration (POEA), EDGAR T.
BUNYOG, VEDASTO NAVARRO,
EUGENIO CAPALAD, RAUL T IS,
ANTONIO TANIOAN,
CELESTINO CASON, DANILO
MANELA & ROBERTO GENESIS,
respondents.
Viray, Aseron & Associates for
petitioners.
The Solicitor General for public
respondent.
GRIÑO-AQUINO, J.:
Imputing grave abuse of discretion to
the public respondent, the petitioners
ask that the public respondent's
decision dated September 9,1987 in
POEA CASE No. (M) 86-11-1080
entitled "VAR-ORIENT SHIPPING
CO., INC. and COMNINOS BROS.
vs. EDUARDO H. ARSOLON, ET
AL.," be annulled for having been
rendered without due process of law,
and that the writ of execution issued
by the POEA Administrator be set
aside for being premature because
the decision is not yet final and
executory as no copy of it had been
received by petitioner's counsel. A
temporary restraining order was
issued by this Court to enjoin the
execution of the decision complained
of pending the determination of the
merits of the petition.
The petitioners filed a complaint
with the Workers' Assistance and
Adjudication Office, Philippine
Overseas Employment
Administration (POEA) against the
private respondents Edgar T.
Bunyog, Vedasto Navarro, Eugenio
Capalad, Raul Tumasis, Antonio
Tanioan, Celestino Cason, Danilo
Manela and Roberto Genesis, crew
members of the MPV "Silver
Reefer," for having allegedly
violated their Contracts of
Employment with the petitioners
which supposedly resulted in
damages arising from the interdiction
of the vessel by the International
Transport Workers' Federation (ITF)
at Kiel Canal, Germany, in March
1986.
After joinder of the issues, the case
was heard on March 4, 1987 where
the parties agreed to submit their
respective position papers and
thereafter the case would be
submitted for decision. Only the
private respondents submitted a
position paper.
On the basis of the pleadings and
memoranda (Annexes A, B, Code.
D, E & F) the public respondent
rendered a decision on September
9,1987 (Annex G), the dispositive
part of which reads as follows:
WHEREFORE, premises considered,
judgment is hereby rendered
ordering as follows:
1. Dismiss of the instant case
with a reprimand and warning
respondents Vedasto Navarro,
Eugenio Capalad, Raul Tumasis,
Antonio Tanioan, Celestino Cason,
Danilo Manela and Roberto Genesis,
against the commission of the same
or similar offense otherwise it shall
be dealt with more severe penalty;
2. Exclusion of Ricardo
Llanes from this case;
3. Reprimanding complainant
Var-Orient Shipping Co. for failure
to comply with its obligations
pursuant to POEA rules and
regulations and warning against
committing the same or a similar
offense otherwise it shall be dealt
with more severely;
62

4. That the case insofar as
respondents Eduardo H. ArsoIon,
Apolinario dela Cruz, Levy Montero
and Danilo N. de la Cruz are
concerned, be archived, while their
names shall be included in the POEA
watchlist until they shall have
voluntarily submitted themselves to
the jurisdiction of this office;
5. Payment by the
complainants jointly and severally,
unto Vedasto Navarro, Eugenio
Capalad, Raul Tumasis, Antonio
Tanioan, Celestino Cason, Danilo
Manela and Roberto Genesis the
amount of Pl,550.59 each,
representing deductions from
allotments, plus Pl,000.00 as and for
attorney's fees; and
6. Payment by the
complainants jointly and severally
unto respondent Edgar T. Bunyog
the amount of US$4,680.00 or its
peso equivalent at the time of
payment representing his salaries for
the unserved portion of his
employment contract plus P4,000.00
as and for attorney's fees.
to be tendered thru this Office, ten
(10) days from receipt of this
decision.
A copy of the decision was sent by
registered mail and delivered by the
postman to the petitioners' counsel,
then Attorney Francisco B. Figura, at
his address on the 4th Floor, TRC
Building, Sen. Gil Puyat Avenue,
Makati, Metro Manila, through the
receptionist, Marlyn Aquino, on the
groundfloor of said building on
September 21, 1987. According to
Attorney Figura, he did not receive
the envelope containing the decision
(p. 66, Rollo).<äre||anº•1àw>
Petitioners allegedly learned about
the decision only when the writ of
execution was served on them on
November 20,1987 by NLRC
Deputy Sheriff Rene Masilungan and
Attorney Wilfredo Ong. On
November 23,1987, petitioners,
through new counsel, Atty. Quentin
Aseron, Jr., filed an 'urgent Motion
to Recall Writ of Execution' on the
ground that the decision had not been
received by the petitioners, hence, it
was not yet final and executory.
On January 19, 1988, the public
respondent denied the motion. In due
time, this petition was filed wherein
the petitioners allege that:
(1) they were denied due
process of law because the
respondent Administrator resolved
the case without any formal hearing;
(2) the respondent
Administrator gravely abused his
discretion in denying petition
petitioners' right to appeal, and
(3) in awarding to the private
respondent's damages which are not
only excessive building unfounded.
The petition is not meritorious.
The petitioners' allegation that the
issuance of the writ of execution was
premature because the decision had
not been received by their counsel is
unconvincing, Atty. Figura's
affidavit on the matter is self-
serving. Petitioners failed to submit
an affidavit of the receptionist
Marlyn Aquino explaining what she
did with the decision which she
received for Atty. Figura. Under the
circumstances, the respondent
Administrator's ruling that the
decision had been properly served on
petitioners' counsel and that it is now
final and unappealable, should be
sustained.
Equally unmeritorious is the
petitioners 'allegation that they were
denied due process because the
decision was rendered without a
formal hearing. The essence of due
process is simply an opportunity to
be heard (Bermejo vs. Banjos, 31
SCRA 764), or, as applied to
administrative proceedings, an
opportunity to explain one's side
(Tajonera vs. Lamaroza, 110 SCRA
438; Gas Corporation of the Phil. vs.
Hon. Inciong, 93 SCRA 653; Cebu
Institute of Technology vs. Minister
of Labor, 113 SCRA 257), or an
opportunity to seek a reconsideration
of the action or ruling complained of
(Dormitorio vs. Fernandez, 72 SCRA
388).
The fact is that at the hearing of the
case on March 4,1987, it was agreed
by the parties that they would file
their respective memoranda and
thereafter consider the case
submitted for decision (Annex 7 of
Bunyog's Comment). This procedure
is authorized by law to expedite the
settlement of labor disputes.
However, only the private
respondents submitted memoranda.
The petitioners did not. On June 10,
1987, the respondents filed a motion
to resolve (Annex 7, Bunyog's
Comment). The petitioners' counsel
did not oppose either the "Motion to
Resolve" or the respondents "Motion
for Execution of Decision" dated
October 19, 1987 (Annex 10), both
of which were furnished them
through counsel. If it were true, as
they now contend, that they had been
denied due process in the form of a
formal hearing, they should have
opposed both motions.
Furthermore, the petition for review
does not allege that the petitioners
are in possession of evidence, other
than those which they had attached
to their pleadings, which if produced
would have altered the outcome of
the case.
63

The Administrator did not abuse his
discretion in ordering the petitioners
to pay respondent Edgar Bunyog's
salaries for the unserved portion of
his contract plus attorney's fees, in
view of the Administrator's finding
that Bunyog did not sign the letter of
the other defendants to ITF, hence,
'he is deemed not to have committed
any offense or act to warrant his
dismissal."
WHEREFORE, the petition for
certiorari is denied for lack of merit.
The temporary restraining order
which We issued is hereby set aside.
SO ORDERED.
G.R. No. 220617
NESTLE PHILIPPINES, INC.,
Petitioner,
vs.
BENNY A. PUEDAN, JR., JAYFER
D. LIMBO, BRODNEY N. AVILA,
ARTHUR C. AQUINO, RYAN A.
MIRANDA, RONALD R. ALAVE,
JOHNNY A. DIMAYA, MARLON
B. DELOS REYES, ANGELITO R.
CORDOVA, EDGAR S.
BARRUGA, CAMILO B.
CORDOVA, JR., JEFFRY B.
LANGUISAN, EDISON U.
VILLAPANDO, JHEIRNEY S.
REMOLIN, MARY LUZ A.
MACATALAD,* JENALYN M.
GAMUROT, DENNIS G. BAWAG,
RAQUEL A. ABELLERA, and
RICANDRO G. GUATNO, JR.,
Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review
on certiorari1are the Decision2 dated
March 26, 2015 and the Resolution3
dated September 17, 2015 of the
Court of Appeals (CA) in CA-G.R.
SP No. 132686, which affirmed the
Decision4 dated May 30, 2013 and
the Resolution5 dated August 30,
2013 of the National Labor Relations 8 Thus, they were constrained to file
Commission (NLRC) in LAC No. the complaint, claiming that: (a)
02-000699-13/ NCR-03-04761-12, ODSI is a labor-only contractor and,
declaring petitioner Nestle thus, they should be deemed regular
Philippines, Inc. (NPI), jointly and employees of NPI; and (b) there was
severally liable with Ocho de no just or authorized cause for their
Septiembre, Inc. (ODSI) to dismissal.9
respondents Benny A. Puedan, Jr.,
Jayfer D. Limbo, Brodney N. Avila,
Arthur C. Aquino, Ryan A. Miranda,
For its part, ODSI averred that it is a
Ronald R. Alave, Johnny A. Dimaya,
company engaged in the business of
Marlon B. Delos Reyes, Angelita R.
buying, selling, distributing, and
Cordova, Edgar S. Barruga, Camilo
marketing of goods and commodities
B. Cordova, Jr., Jeffry B. Languisan,
of every kind and it enters into all
Edison U. Villapando, Jheirney S.
kinds of contracts for the acquisition
Remolin, Mary Luz A. Macatalad,
thereof. ODSI admitted that on
Jenalyn M. Gamurot, Dennis G.
various dates, it hired respondents as
Bawag, Raquel A. Abellera, and
its employees and assigned them to
Ricandro G. Guatno, Jr.
execute the Distributorship
(respondents) for separation pay,
Agreement10 it entered with NPI, 11
nominal damages, and attorney's
the relevant portions of which state:
fees.
3.1 DISTRIBUTOR (ODSI) shall
The Facts
assign a sales force in his/her regular
employ, dedicated solely to the
handling of NPI Grocery Retail
The instant case arose from an Products under this Agreement, and
amended6 complaint7 dated July 6, who shall exclusively cover assigned
2012 for illegal dismissal, damages, areas/channels of distribution.
and attorney's fees filed by
respondents against, inter alia, ODSI
and NPI. Respondents alleged that
3.2 DISTRIBUTOR shall service the
on various dates, ODSI and NPI
outlets within the Territory by
hired them to sell various NPI
reselling Products obtained
products in the assigned covered
exclusively from Nestle Philippines,
area. After some time, respondents
Inc. and not from any other source.
demanded that they be considered
regular employees of NPI, but they
were directed to sign contracts of
employment with ODSI instead. 3.3 DISTRIBUTOR shall utilize
When respondents refused to comply booking and distribution salesmen to
with such directives, NPI and ODSI
terminated them from their position.
64
undertake territory development.
Booking done by DISTRIBUTOR
shall be delivered by its personnel.
Collection of accounts shall be taken
cared (sic) of by DISTRIBUTOR,
without prejudice to the provisions
of Clause 13 hereof.
3.4 DISTRIBUTOR's route salesmen
shall exclusively cover assigned ex-
truck areas/channels of distribution.
3.5 DISTRIBUTOR shall also
provide training to its staff or
personnel where necessary, to
improve operations in servicing the
requirements of DISTRIBUTOR's
customers. From time to time,
NESTLE shall offer to
DISTRIBUTOR suggestions and
recommendations to improve sales
and to further develop the market.
3.6 DISTRIBUTOR shall meet the
sales, reach and distribution targets
agreed upon by NESTLE and
DISTRIBUTOR. For purposes of
this clause, reach targets refer to the
number of stores, dealers and/or
outlets which DISTRIBUTOR
should cover or service within a
particular period. Distribution targets
refer to the number of stock keeping
units and/or product lines covered by
this Agreement.
In the event of DISTRIBUTOR's
failure to meet NESTLE's sales
targets, NESTLE has the sole
discretion of assigning another
distributor of the Products and/or
reducing the Territory covered by
DISTRIBUTOR.
3.7 DISTRIBUTOR agrees to
provide at its own cost and expense
facilities and other resources
necessary for the distribution and
sale of the Products.
3.8 NESTLE's sales personnel may
get orders for the Products
distributed by DISTRIBUTOR and
pass on the said orders to
DISTRIBUTOR.
3.9 NESTLE shall provide the
necessary promotional and
marketing support for the Products
through promotional materials,
product information literature,
participation in trade fairs, and other
market development activities.
3.10 Should NESTLE manufacture
and/or distribute other products not
subject of this Agreement, which, in
NESTLE's opinion, should likewise
be extended to DISTRIBUTOR's
outlets, such additional products
shall be included among those listed
in Annex "A" hereof.
NESTLE shall deliver the Products
to DISTRIBUTOR's warehouse(s) at
its own expenses. Immediately upon
receipt of the Products,
DISTRIBUTOR shall carry out a
visual inspection thereof. In the
event any quantity of the Products is
found to be defective upon such
visual inspection, NESTLE shall
replace such quantity of the Products
at no cost to DISTRIBUTOR.
3.11 All costs for transportation
and/or shipment of the Products from
DISTRIBUTOR's warehouse(s) to its
outlets/customers shall be the
account of the DISTRIBUTOR. 12
However, the business relationship
between NPI and ODSI turned sour
when the former' s sales department
badgered the latter regarding the
sales targets. Eventually, NPI
downsized its marketing and
promotional support from ODSI
which resulted to business reverses
and in the latter's filing of a petition
for corporate rehabilitation and,
subsequently, the closure of its
Nestle unit due to the termination of
the Distributorship Agreement and
the failure of rehabilitation. Under
the foregoing circumstances, ODSI
argued that respondents were not
dismissed but merely put in floating
status. 13
On the other hand, NPI did not file
any position paper or appear in the
scheduled conferences. 14
The Labor Arbiter Ruling
In a Decision15 dated December 28,
2012, the Labor Arbiter (LA)
dismissed the complaint for lack of
merit, but nevertheless, ordered, inter
alia, ODSI and NPI to pay
respondents nominal damages in the
aggregate amount of ₱235,728.00
plus attorney's fees amounting to ten
percent (10%) of the total monetary
awards. 16 The LA found that: (a)
respondents were unable to prove
that they were NPI employees; and
(b) respondents were not illegally
dismissed as ODSI had indeed
closed down its operations due to
business losses. 17 As to the issue on
the failure to give respondents a
thirty (30)-day notice prior to such
closure, the LA concluded that all
the impleaded respondents therein
(i.e., including NPI) should be held
liable for the payment of nominal
damages plus attorney's fees. 18
Aggrieved, respondents appealed to
the NLRC.19
The NLRC Ruling
In a Decision20 dated May 30, 2013,
the NLRC reversed and set aside the
LA ruling and, accordingly, ordered
ODSI and NPI to pay each of the
respondents: (a) separation pay
amounting to Yi month pay for every
year of service reckoned from the
time they were employed until the
finality of the Decision; and (b)
nominal damages in the amount of
₱30,000.00. The NLRC likewise
ordered NPI and ODSI to pay
65
respondents attorney's fees
amounting to ten percent (10%) of
the monetary awards.21
Contrary to the LA's findings, the
NLRC found that while ODSI indeed
shut down its operations, it failed to
prove that such closure was due to
serious business losses as it did not
present evidence, e.g., financial
statements, to corroborate its claims.
As such, it ruled that respondents are
entitled to separation pay. In this
relation, the NLRC also found that
since ODSI failed to notify
respondents of such closure, the
latter are likewise entitled to nominal
damages.22
Further, the NLRC found ODSI to be
a labor-only contractor of NPI,
considering that: (a) ODSI had no
substantial capitalization or
investment; (b) respondents
performed activities directly related
to NPI's principal business; and (c)
the fact that respondents'
employment depended on the
continuous supply of NPI products
shows that ODSI had not been
carrying an independent business
according to its own manner and
method.23
Consequently, the NLRC deemed
NPI to be respondents' true
employer, and thus, ordered it jointly
and severally liable with ODSI to
pay the monetary claims of
respondents. 24
Respondents moved for a partial
reconsideration, 25 arguing that
since it was only ODSI that closed
down operations and not NPI and,
considering the finding that the latter
was deemed to be their true
employer, NPI should reinstate them,
or if not practicable, to pay them
separation pay equivalent to one (1)
month pay for every year of service.
NPI also moved for
reconsideration,26 contending that:
(a) it was deprived of its right to
participate in the proceedings before
the LA and the NLRC; and (b) it had
no employer-employee relationship
with respondents as ODSI was never
its contractor, whether independent
or labor-only.27 However, the
NLRC denied both motions in a
Resolution28 dated August 30, 2013,
holding that: (a) respondents'
termination was due to the closure of
ODSI's Nestle unit, an authorized
cause and, thus, the monetary awards
in their favor were proper; (b) NPI
was not deprived of its right to
participate in the proceedings as it
was duly served with copies of the
parties' respective pleadings, as well
as the rulings of both the LA and the
NLRC; (c) assuming arguendo that
NPI was indeed deprived of due
process, its subsequent filing of a
motion for reconsideration before the
NLRC cured the defect as it was able
to argue its position in the said
motion; and (d) the circumstances
surrounding the Distributorship
Agreement between ODSI and NPI
showed that the former is indeed a
labor-only contractor of the latter. 29
Dissatisfied, NPI filed a petition for The Issues Before the Court
certiorari30before the CA,
essentially insisting that: (a) it was
deprived of due process before the
The essential issues for the Court's
tribunals a quo; and (b) there was no
resolution are whether or not the CA
employer-employee relationship
correctly ruled that: (a) NPI was
between NPI and respondents. 31
accorded due process by the
Records reveal that no other party
tribunals a quo; and (b) ODSI is a
elevated the matter before the CA.
labor-only contractor of NPI, and
consequently, NPI is respondents'
true employer and, thus, deemed
The CA Ruling jointly and severally liable with
ODSI for respondents' monetary
claims.
In a Decision32 dated March 26,
2015, the CA affirmed the NLRC
ruling. Anent the issue on due The Court's Ruling
process, the CA held that NPI was
not deprived of its opportunity to be
heard as it was able to receive a copy
To justify the grant of the
of the complaint and other pleadings,
extraordinary remedy of certiorari,
albeit it failed to respond thereto. 33
the petitioner must satisfactorily
As regards the substantive issue, the
show that the court or quasi-judicial
CA ruled that despite ODSI and
authority gravely abused the
NPI's contract being denominated as
discretion conferred upon it. Grave
a "Distributorship Agreement," it
abuse of discretion connotes a
contained provisions demonstrating a
capricious and whimsical exercise of
labor-only contracting arrangement
judgment, done in a despotic manner
between them, as well as NPI' s
by reason of passion or personal
exercise of control over the business
hostility, the character of which
of ODSI. Moreover, the CA pointed
being so patent and gross as to
out that: (a) there was nothing in the
amount to an evasion of positive
records which showed that ODSI had
duty or to a virtual refusal to perform
substantial capital to undertake an
the duty enjoined by or to act at all in
independent business; and (b)
contemplation of law. 37
respondents performed tasks
essential to NPI's business.34
Undaunted, NPI moved for
reconsideration, 35 which was, In labor disputes, grave abuse of
however, denied in a Resolution36 discretion may be ascribed to the
dated September 17, 2015; hence, NLRC when, inter alia, its findings
this petition. and conclusions are not supported by
66
substantial evidence, or that amount
of relevant evidence which a
reasonable mind might accept as
adequate to justify a conclusion. 38
Guided by the foregoing
considerations, the Court finds that
the CA was correct in ruling that the
labor tribunals a quo gave NPI an
opportunity to be heard. However, it
erred in not ascribing grave abuse of
discretion on the NLRC's finding
that ODSI is a labor-only contractor
of NPI and, thus, the latter is the
respondents' true employer, and
jointly and severally liable with
ODSI for respondents' monetary
claims. As will be explained
hereunder, such finding by the
NLRC is not supported by
substantial evidence.
I.
The observance of fairness in the
conduct of any investigation is at the
very heart of procedural due process.
The essence of due process is to be
heard, and, as applied to
administrative proceedings, this
means a fair and reasonable
opportunity to explain one's side, or
an opportunity to seek a
reconsideration of the action or
ruling complained of. Administrative
due process cannot be fully equated
with due process in its strict judicial
sense, for in the former a formal or
trial-type hearing is not always
necessary, and technical rules of
procedure are not strictly applied.39
The Court's disquisition in Ledesma
v. CA40is instructive on this matter,
to wit:
Due process, as a constitutional
precept, does not always and in all
situations require a trial-type
proceeding. Due process is satisfied
when a person is notified of the
charge against him and given an
opportunity to explain or defend
himself. In administrative
proceedings, the filing of charges
and giving reasonable opportunity
for the person so charged to answer
the accusations against him
constitute the minimum requirements
of due process. The essence of due
process is simply to be heard, or as
applied to administrative
proceedings, an opportunity to
explain ones side, or an opportunity
to seek a reconsideration of the
action or ruling complained
of.41(Emphasis and underscoring
supplied)
In this case, NPI essentially claims
that it was deprived of its right to due
process when it was not notified of
the proceedings before the LA and
did not receive copies and issuances
from the other parties and the LA,
respectively.42 However, as
correctly pointed out by the CA, NPI
was furnished via courier of a copy
of the amended complaint filed by
the respondents against it as shown
by LBC Receipt No.
125158910840.43 It is also apparent
that NPI was also furnished with the
respondents' Position Paper, Reply,
and Rejoinder.44 Verily, NPI was
indeed accorded due process, but as
the LA mentioned, the former chose
not to file any position paper or
appear in the scheduled
conferences.45
Assuming arguendo that NPI was
somehow deprived of due process
by either of the labor tribunals, such
defect was cured by: (a) NPI' s filing
of its motion for reconsideration
before the NLRC; (b) the NLRC's
subsequent issuance of its Resolution
dated August 30, 2013 wherein the
tribunal considered all of NPI's
arguments as contained in its motion;
and (c) NPI's subsequent elevation of
the case to the CA. In Gonzales v.
Civil Service Commission, 46 the
Court reiterated the rule that "[a]ny
seeming defect in [the] observance
[of due process] is cured by the filing
of a motion for reconsideration," and
that "denial of due process cannot be
successfully invoked by a party who
[was] afforded the opportunity to be
heard x x x."47 Similarly, in
Autencio v. Mañara,48it was held
that defects in procedural due
process may be cured when the party
has been afforded the opportunity to
appeal or to seek reconsideration of
the action or ruling complained of.
49
Evidently, the foregoing shows that
NPI was not denied due process of
law as it was afforded the fair and
reasonable opportunity to explain its
side.
II.
In holding NPI jointly and severally
liable with ODSI for the monetary
awards in favor of respondents, both
the NLRC and the CA held that
based on the provisions of the
Distributorship Agreement between
them, ODSI is merely a labor-only
contractor of NPI. 50 In this regard,
the CA opined that the following
stipulations of the said Agreement
evinces that NPI had control over the
business of ODSI, namely, that: (a)
NPI shall offer to ODSI suggestions
and recommendations to improve
sales and to further develop the
market; (b) NPI prohibits ODSI from
exporting its products (the No-
Export provision); (c) NPI provided
standard requirements to ODSI for
the warehousing and inventory
management of the sold goods; and
(d) prohibition imposed on ODSI to
sell any other products that directly
compete with those of NPI.51
However, a closer examination of the
Distributorship Agreement reveals
that the relationship of NPI and
ODSI is not that of a principal and a
contractor (regardless of whether
labor-only or independent), but that
of a seller and a buyer/re-seller. As
stipulated in the Distributorship
Agreement, NPI agreed to sell its
67
products to ODSI at discounted
prices,52 which in turn will be re-
sold to identified customers,
ensuring in the process the integrity
and quality of the said products
based on the standards agreed upon
by the parties. 53 As aptly explained
by NPI, the goods it manufactures
are distributed to the market through
various distributors, e.g., ODSI, that
in turn, re-sell the same to designated
outlets through its own employees
such as the respondents. Therefore,
the reselling activities allegedly
performed by the respondents
properly pertain to ODSI, whose
principal business consists of the
"buying, selling, distributing, and
marketing goods and commodities of
every kind" and "[entering] into all
kinds of contracts for the acquisition
of such goods [and commodities]."54
Thus, contrary to the CA's findings,
the aforementioned stipulations in
the Distributorship Agreement
hardly demonstrate control on the
part of NPI over the means and
methods by which ODSI performs its
business, nor were they intended to
dictate how ODSI shall conduct its
business as a distributor. Otherwise
stated, the stipulations in the
Distributorship Agreement do not
operate to control or fix the
methodology on how ODSI should
do its business as a distributor of NPI
products, but merely provide rules of
conduct or guidelines towards the
achievement of a mutually desired
result55 - which in this case is the
sale of NPI products to the end
consumer. In Steelcase, Inc. v.
Design International Selections, Inc.,
56 the Court held that the imposition
of minimum standards concerning
sales, marketing, finance and
operations are nothing more than an
exercise of sound business practice
to increase sales and maximize
profits, to wit:
Finally, both the CA and DISI rely
heavily on the Dealer Performance
Expectation required by Steelcase of
its distributors to prove that DISI
was not functioning independently
from Steelcase because the same
imposed certain conditions
pertaining to business planning,
organizational structure, operational
effectiveness and efficiency, and
financial stability. It is actually
logical to expect that Steelcase,
being one of the major
manufacturers of office systems
furniture, would require its dealers to
meet several conditions for the grant
and continuation of a distributorship
agreement. The imposition of
minimum standards concerning
sales, marketing, finance and
operations is nothing more than an
exercise of sound business practice
to increase sales and maximize
profits for the benefit of both
Steelcase and its distributors. For as
long as these requirements do not
impinge on a distributor's
independence, then there is nothing
wrong with placing reasonable
expectations on them. 57 (Emphasis
and underscoring supplied)
Verily, it was only reasonable for Puedan, Jr., Jayfer D. Limbo,
NPI - it being a local arm of one of Brodney N. Avila, Arthur C. Aquino,
the largest manufacturers of foods Ryan A. Miranda, Ronald R. Alave,
and grocery products worldwide - to Johnny A. Dimaya, Marlon B. Delos
require its distributors, such as Reyes, Angelito R. Cordova, Edgar
ODSI, to meet various conditions for S. Barruga, Camilo B. Cordova, Jr.,
the grant and continuation of a Jeffry B. Languisan, Edison U.
distributorship agreement for as long Villapando, Jheimey S. Remolin,
as these conditions do not control the Mary Luz A. Macatalad, Jenalyn M.
means and methods on how ODSI Gamurot, Dennis G. Bawag, Raquel
does its distributorship business, as A. Abellera, and Ricandro G.
shown in this case.1âwphi1 This is to Guatno, Jr.
ensure the integrity and quality of the
products which will ultimately fall
into the hands of the end consumer.
SO ORDERED.
Thus, the foregoing circumstances
show that ODSI was not a labor-only
contractor of NPI; hence, the latter
cannot be deemed the true employer
of respondents. As a consequence,
NPI cannot be held jointly and
severally liable to ODSI's monetary
obligations towards respondents.
WHEREFORE, the petition is
GRANTED. The Decision dated
March 26, 2015 and the Resolution
dated September 17, 2015 of the
Court of Appeals in CA-G.R. SP No.
132686 are hereby REVERSED and
SET ASIDE. Accordingly, the
Decision dated May 30, 2013 and the
Resolution dated August 30, 2013 of
the National Labor Relations
Commission in LAC No. 02-000699-
13/ NCR-03-04761-12 are
MODIFIED, DELETING petitioner
Nestle Philippines, Inc.'s solidary
liability with Ocho de Septiembre,
Inc. (ODSI) for the latter's monetary
obligations to respondents Benny A.
68
SECOND DIVISION
G.R. No. L-44251 May 31, 1977
FELIX MONTEMAYOR, petitioner,
vs.
ARANETA UNIVERSITY
FOUNDATION, JUAN SALCEDO,
JR., TOMAS DAVID, MARTIN
CELINO, MARCELO AMIANA, as
Members of the Panel of
Investigators, Members of the Board
of Trustees, FR. ROMEO PELAYO
and the HONORABLE
SECRETARY OF LABOR,
respondents.
E. B. Garcia & Associates for
petitioner.
Marcelo C. Amiana for private
respondents.
Solicitor General Estelito P.
Mendoza Assistant Solicitor General
Reynato S. Puno and Solicitor Jesus
V. Diaz respondent Secretary of
Labor.
FERNANDO, J.:
The protection to labor mandate is
more of a reality with the present
Constitution expressly providing for
security, of tenure. 1 Moreover, for a
university professor, aptly referred to
as a tiller in the vineyard of the
mind, there is the guarantee of
academic freedom. 2 Nonetheless,
for cause duly shown there may be a
forced termination of his services. It
is essential though that prior to his
removal, procedural due process be
observed. The grievance alleged by
petitioner in this case, a university
professor, was that there was a
failure to comply with such a
requisite. When therefore respondent
Secretary of Labor granted a
clearance to the private respondent,
the Araneta University Foundation,3
for his dismissal for immorality he
instituted this certiorari proceeding.
A thorough and exhaustive
comment, considered as the answer,
filed by Solicitor General Estelito P.
Mendoza 4 with full support from
the record, negates such a
contention. There is no basis for a
reversal. certiorari does not lie.
It is undisputed that petitioner Felix
Montemayor was a fulltime
professor of respondent Araneta
University Foundation, serving as
head of its Humanities and
Psychology Department, Previously,
he was on the faculty of other
educational institutions. There was,
on April 17, 1974, a complaint for
immorality lodged against him by
the Chaplain of the Araneta
University Foundation for alleged
immorality. Its then President, Dr.
Juan Salcedo, Jr., created a
committee to investigate such
charge. The first hearing, which took
place on April 24, 1974, was
attended by petitioner as well as
complainant with his two witnesses.
One of them. Leonardo de Lara,
submitted an affidavit. Petitioner
sought the postponement of the
investigation to May 3, 1974. It was
granted. On that occasion, he was
furnished a copy of the affidavit of
the other witness, Macario
Lacanilao. The accusation centered
on conversations on sex and immoral
advances committed against the
person of Leonardo de Lara. There
was cross-examination by petitioner
of the witnesses against him. With
the assistance of counsel, he filed on
May 28, 1974 a motion to dismiss or
to hold the hearing in abeyance. He
likewise filed an affidavit to sustain
his defense on June 17, 1974. The
report and recommendation of the
investigating committee came on
July 8, 1974. It was adverse to
petitioner, who was found morally
responsible for the act complained
of. The recommendation was for his
demotion in rank by one degree. The
then President Juan Salcedo, Jr., on
August 5, 1974, adopted such
recommendation and thereafter
referred the same to the Board of
Trustees of private respondent for
appropriate action. Subsequently, on
November 8, 1974, with new charges
being filed by Professor Luis R.
Almazan, one Jaime Castaneda, and
Jesus Martinez against petitioner for
conduct unbecoming of a faculty
member, another committee was
appointed. Then came his preventive
suspension, ordered to last until the
administrative investigation was
concluded. There was a motion by
petitioner for the postponement of
the hearing set for November 18 and
19, 1974, but the same was denied.
The hearing proceeded in his
absence. There was testimony by
Professor Luis Almazan and Jaime
Castaneda. Thereafter, on December
5, 1974, the Committee submitted its
report finding the charges against
petitioner to have been sufficiently
established and recommending to the
President and the Board of Trustees
of the Araneta University Foundation
his separation from the University, in
accordance with Sections 116 and
351 of the Manual of Policies of the
University. The Committee found as
established: "1. That immoral
advances on several occasions have
been made by respondent [herein
petitioner] on Prof. Luis Almazan 2.
That immoral advances have also
been made by respondent on Jaime
Castaneda, a student- employee of
the university on several occasions;
3. That said immoral advances were
frustrated because both Professor
Almazan and Mr. Castaneda had
refused to accept them; 4. That both
witnesses and victims of said
immoral advances have declared that
the behavior of respondent was
detrimental [and] prejudicial to the
moral and educational standards of
the Araneta University Foundation;
5. That because of said behavior,
respondent should not continue as
Professor in the University; and 6.
That the acts of respondent
complained of are offensive to good
morals [and] inimical to the welfare
of students and greatly prejudicial to
[the] interest and educational
69
objectives of University, hence the
same are highly reprehensible." 5
His dismissal was then ordered on
December 10, 1974, effective
November 15, 1974, the date of his
preventive suspension. The
University, on December 12, 1974,
filed with the National Labor
Relations Commission a report of his
suspension and application for
clearance to terminate his
employment. Meanwhile, on
November 21, 1974, petitioner in
turn lodged a complaint with the
National Labor Relations
Commission against private
respondents for reinstatement and
payment of back wages and salaries,
with all the privileges, benefits and
increments attendant thereto. There
was a motion to dismiss on the part
of the latter. Both the labor arbiter
and the National Labor Relations
Commission found in favor of
petitioner. He was ordered reinstated
to his former position with back
wages and without loss of seniority
and other privileges. Petitioner's
complaint for unfair labor practice
was, however, dismissed. Private
respondents appealed to respondent
Secretary of Labor who, on July 14,
1976, set aside the Commission's
order for his reinstatement. He found
petitioner's dismissal justified, Nor
was he persuaded by the plea that
there was denial of due process. He
was satisfied with the procedure
followed by private respondent.
Moreover, he could not have ignored
the fact that the controversy between
the parties was passed upon and the
parties heard on their respective
contentions in the proceedings before
the labor agencies. Respondent
University was, however, required to
pay complainant the amount of
P14,480.00 representing the latter's
accrued back wages which the
former voluntarily offered to extend
him. Dissatisfied with the Secretary's
decision, petitioner filed this instant
petition for certiorari.
1. The present Constitution,
as noted, expanded the scope of the
protection to labor mandate by
specifying that the State shall assure
the right of workers to security of
tenure. This Court, as stressed in
Philippine Air Lines, Inc. v.
Philippine Air Lines Employees
Associations 6 is called upon to
manifest realty to a constitutional
command." 7 Subsequently, in
Almira v. B. F. Goodrich
Philippines, 8 it was the ruling of this
Tribunal that even where disciplinary
action against an employee is
warranted, "where a penalty less
punitive [than dismissal] would
suffice, whatever missteps may be
committed ought not to be visited
with a consequence so severe." 9 An
instructor or member of a teaching
staff of a university was held, in the
leading case of Feati University v.
Bautista, 10 to be an employee. As
such, he is entitled to that security of
tenure guaranteed by the
Constitution. The explicit
pronouncement in Feati University v.
Bautista was foreshadowed by Far
Eastern University v. Court of
Industrial Relations, 11 a 1962
decision. While a faculty member
such as petitioner may be dismissed,
it must be for cause. What is more,
there must be clearance from the
Secretary of Labor. So it is provided
in the Labor Code.12
2. The stand taken by
petitioner as to his being entitled to
security of tenure is reinforced by the
provision on academic freedom
which, as noted, is found in the
Constitution. While reference therein
is to institutions of higher learning, it
was pointed out in Garcia v. The
Faculty Admission, Committee 13
that academic freedom "is more
often Identified with the right of a
faculty member to pursue his studies
in his particular specialty and
thereafter to make known or publish
the result of his endeavors without
fear that retribution would be visited
on him in the event that his
conclusions are found distasteful or
objectionable to the powers that be,
whether in the political, economic, or
academic establishments. For the
sociologist, Robert Maclver, it is 'a
right claimed by the accredited
educator, as teacher and as
investigator, to interpret his findings
and to communicate his conclusions
without being subjected to any
interference, molestation, or
penalization because these
conclusions are unacceptable to
some constituted authority within or
beyond the institution.'" 14 Tenure,
according to him, is of the essence of
such freedom. For him, without
tenure that assures a faculty member
"against dismissal or professional
penalization on grounds other than
professional incompetence or
conduct that in the judgment of his
colleagues renders him unfit" for
membership in the faculty, the
academic right becomes non-
existent, 15 Security of tenure, for
another scholar, Love joy, is "the
chief practical requisite for academic
freedom" of a university professor.
16 As with Maclver, he did not rule
out removal but only "for some
grave cause," Identified by him as
"proved incompetence or moral
delinquency." 17
3. The charge leveled against
petitioner, that of making
homosexual advances to certain
individuals, if proved, did amount to
a sufficient cause for removal. The
crucial question therefore is whether
it was shown that he was guilty of
such immoral conduct. He is thus
entitled to the protection of
procedural due process. To
paraphrase Webster, there must be a
hearing before condemnation, with
the investigation to proceed in an
orderly manner, and judgment to be
rendered only after such inquiry. As
far back as 1915, the American
Association of University Professors
adopted the principle that "every
university or college teacher should
be entitled before dismissal or
demotion, to have the charges
against him stated in writing, in
specific terms and to have a fair trial
on these charges before a special or
permanent judicial committee of the
faculty or by the faculty at large. At
such trial the teacher accused should
have full opportunity to present
evidence."18 Thus the phrase,
academic due process, hag gained
70
currency, Joughin referred to it as a
system of procedure designed to
yield the beat possible judgment
when an adverse decision against a
professor may be the consequence
with stress on the clear, orderly, and
fair way of reaching a conclusion. 19
4. The procedure followed in
the first investigation of petitioner,
conducted in June of 1974, did
satisfy the procedural due process
requisite. The same cannot be said of
the November, 1974 inquiry when
the petitioner had to face anew a
similar charge of making
homosexual advances. As admitted
in the exhaustive comment of the
Solicitor General: "On November 16,
1974, Montemayor, through counsel,
moved for the postponement of the
hearing set for November 18 and 19,
1974 but the same was rejected by
the committee. The hearing
proceeded as scheduled in the
absence of Professor Montemayor
and his counsel. In said hearing,
Prof. Luis Almazan and Jaime
Castaneda testified. On December 5,
1974, the Committee submitted its
report finding the charges against
Montemayor to have been
sufficiently established and
recommending to the President and
the Board of Trustees of the Araneta
University Foundation his separation
from the University, in accordance
with Sections 116 and 351 of the
Manual of Policies of the
University." 20 It does appear
therefore that the members of such
investigating committee failed to
show full awareness of the demands
of procedural due process. A motion
by petitioner for postponement of the
hearing, apparently the first one
made, was denied. What is worse, in
his absence the matter was heard
with the committee losing no time in
submitting its report finding the
charges against petitioner to have
been sufficiently established and
recommending his removal. If that
were all, respondent Secretary of
Labor cannot be sustained. certiorari
would lie. But such deficiency was
remedied, as pointed out in the same
comment of the Solicitor General, by
the fact "that petitioner was able to
present his case before the Labor
Commission ." 21 Then he
continued: "Thus, the record
discloses that at a mediation
conference held on December 9,
1974, the parties appeared and, after
all efforts at conciliation had failed,
they agreed to submit their dispute
for compulsory arbitration. Several
hearings were conducted by Labor
Arbiter Atty. Daniel Lucas, Jr.,
wherein petitioner submitted his
evidence supported by his affidavit
impugning the regularity of the
proceedings before the investigating
committees and assailing the legality
of his removal. The entire record of
the administrative proceedings,
including the transcript of the
stenographic notes taken therein, was
elevated to the Labor Commission
for review. Petitioner herein, thru
counsel, moved for reinstatement
during the pendency of the case. In
another motion, he prayed for the
consolidation and joint hearing of his
complaint for unfair labor practice
against herein private respondents
(NLRC Case No. R-IV-1060-74)
with that of the application for Solicitor General, of decisive
clearance filed by the University to significance as far as the due process
terminate Montemayor's issue is concerned. Instead, the
employment. On the other hand, the emphasis was on the alleged
University moved to dismiss the commission of an unfair labor
complaint for unfair labor practice practice by private respondent.
against its officials on the ground Inasmuch as the Arbiter as well as
that they were not complainant's the National Labor Relations
employers and that their participation Commission absolved private
in the administrative case against the respondent from the charge of unfair
latter was official in nature. labor practice, it would appear that
Respondent University also the emphasis of counsel for
presented the affidavit of Thomas P. petitioner was misplaced.
G. Neill Dean of the Institute of Accordingly, there is nothing in the
Agricultural Business Administration record that would militate against the
and Chairman of the Committee contention of the Solicitor General
created to investigate the charges of that there was an observance of
immorality against petitioner procedural due process.
attesting to the regularity of the
proceedings and the validity of the
dismissal." 22 The legal aspect as to
WHEREFORE, the petition for
the procedural due process having
certiorari is dismissed No. costs.
been satisfied was then summarized
by the Solicitor General thus: "All
the foregoing clearly shows that
petitioner was afforded his day in
court. Finally, and more significant,
is the fact that petitioner claims
denial of due process in the
proceeding had before the
investigating committees and not in
the proceedings before the NLRC
wherein, as shown heretofore, he
was given the fullest opportunity to
present his case." 23
5. The comment of the
Solicitor General was submitted on
January 4, 1977. The memorandum
for petitioner was submitted on April
25. What immediately calls attention
is that no attempt was made to refute
specifically such recital of the
71
EN BANC
G.R. No. L-46496 February
27, 1940
ANG TIBAY, represented by
TORIBIO TEODORO, manager and
propietor, and
NATIONAL WORKERS
BROTHERHOOD, petitioners,
vs.
THE COURT OF INDUSTRIAL
RELATIONS and NATIONAL
LABOR UNION, INC., respondents.
Office of the Solicitor-General
Ozaeta and Assistant Attorney
Barcelona for the Court of Industrial
Relations.
Antonio D. Paguia for National
Labor Unon.
Claro M. Recto for petitioner "Ang
Tibay".
Jose M. Casal for National Workers'
Brotherhood.
LAUREL, J.:
The Solicitor-General in behalf of
the respondent Court of Industrial
Relations in the above-entitled case
has filed a motion for
reconsideration and moves that, for
the reasons stated in his motion, we
reconsider the following legal
conclusions of the majority opinion
of this Court:
1. Que un contrato de trabajo, asi
individual como colectivo, sin
termino fijo de duracion o que no sea
para una determinada, termina o bien
por voluntad de cualquiera de las
partes o cada vez que ilega el plazo
fijado para el pago de los salarios
segun costumbre en la localidad o
cunado se termine la obra;
2. Que los obreros de una empresa
fabril, que han celebrado contrato, ya
individual ya colectivamente, con ell,
sin tiempo fijo, y que se han visto
obligados a cesar en sus tarbajos por
haberse declarando paro forzoso en
la fabrica en la cual tarbajan, dejan
de ser empleados u obreros de la
misma;
3. Que un patrono o sociedad que ha
celebrado un contrato colectivo de
trabajo con sus osbreros sin tiempo
fijo de duracion y sin ser para una
obra determiminada y que se niega a
readmitir a dichos obreros que
cesaron como consecuencia de un
paro forzoso, no es culpable de
practica injusta in incurre en la
sancion penal del articulo 5 de la Ley
No. 213 del Commonwealth, aunque
su negativa a readmitir se deba a que
dichos obreros pertenecen a un
determinado organismo obrero,
puesto que tales ya han dejado deser
empleados suyos por terminacion del
contrato en virtud del paro.
The respondent National Labor
Union, Inc., on the other hand, prays
for the vacation of the judgement
rendered by the majority of this
Court and the remanding of the case
to the Court of Industrial Relations
for a new trial, and avers:
1. That Toribio Teodoro's claim that
on September 26, 1938, there was
shortage of leather soles in ANG
TIBAY making it necessary for him
to temporarily lay off the members
of the National Labor Union Inc., is
entirely false and unsupported by the
records of the Bureau of Customs
and the Books of Accounts of native
dealers in leather.
2. That the supposed lack of leather
materials claimed by Toribio
Teodoro was but a scheme to
systematically prevent the forfeiture
of this bond despite the breach of his
CONTRACT with the Philippine
Army.
3. That Toribio Teodoro's letter to
the Philippine Army dated
September 29, 1938, (re supposed
delay of leather soles from the
States) was but a scheme to
systematically prevent the forfeiture
of this bond despite the breach of his
CONTRACT with the Philippine
Army.
4. That the National Worker's
Brotherhood of ANG TIBAY is a
company or employer union
dominated by Toribio Teodoro, the
existence and functions of which are
illegal. (281 U.S., 548, petitioner's
printed memorandum, p. 25.)
5. That in the exercise by the
laborers of their rights to collective
bargaining, majority rule and
elective representation are highly
essential and indispensable.
(Sections 2 and 5, Commonwealth
Act No. 213.)
6. That the century provisions of the
Civil Code which had been (the)
principal source of dissensions and
continuous civil war in Spain cannot
and should not be made applicable in
interpreting and applying the salutary
provisions of a modern labor
legislation of American origin where
the industrial peace has always been
the rule.
7. That the employer Toribio
Teodoro was guilty of unfair labor
practice for discriminating against
the National Labor Union, Inc., and
unjustly favoring the National
Workers' Brotherhood.
72
8. That the exhibits hereto attached
are so inaccessible to the respondents
that even with the exercise of due
diligence they could not be expected
to have obtained them and offered as
evidence in the Court of Industrial
Relations.
9. That the attached documents and
exhibits are of such far-reaching
importance and effect that their
admission would necessarily mean
the modification and reversal of the
judgment rendered herein.
The petitioner, Ang Tibay, has filed
an opposition both to the motion for
reconsideration of the respondent
National Labor Union, Inc.
In view of the conclusion reached by
us and to be herein after stead with
reference to the motion for a new
trial of the respondent National
Labor Union, Inc., we are of the
opinion that it is not necessary to
pass upon the motion for
reconsideration of the Solicitor-
General. We shall proceed to dispose
of the motion for new trial of the
respondent labor union. Before doing
this, however, we deem it necessary,
in the interest of orderly procedure in
cases of this nature, in interest of
orderly procedure in cases of this
nature, to make several observations
regarding the nature of the powers of
the Court of Industrial Relations and
emphasize certain guiding principles
which should be observed in the trial
of cases brought before it. We have
re-examined the entire record of the
proceedings had before the Court of
Industrial Relations in this case, and
we have found no substantial
evidence that the exclusion of the 89
laborers here was due to their union
affiliation or activity. The whole
transcript taken contains what
transpired during the hearing and is
more of a record of contradictory and
conflicting statements of opposing
counsel, with sporadic conclusion
drawn to suit their own views. It is
evident that these statements and
expressions of views of counsel have
no evidentiary value.
The Court of Industrial Relations is a
special court whose functions are
specifically stated in the law of its
creation (Commonwealth Act No.
103). It is more an administrative
than a part of the integrated judicial
system of the nation. It is not
intended to be a mere receptive
organ of the Government. Unlike a
court of justice which is essentially
passive, acting only when its
jurisdiction is invoked and deciding
only cases that are presented to it by
the parties litigant, the function of
the Court of Industrial Relations, as
will appear from perusal of its
organic law, is more active,
affirmative and dynamic. It not only
exercises judicial or quasi-judicial
functions in the determination of
disputes between employers and
employees but its functions in the
determination of disputes between
employers and employees but its
functions are far more
comprehensive and expensive. It has
jurisdiction over the entire
Philippines, to consider, investigate,
decide, and settle any question,
matter controversy or dispute arising
between, and/or affecting employers
and employees or laborers, and
regulate the relations between them,
subject to, and in accordance with,
the provisions of Commonwealth
Act No. 103 (section 1). It shall take
cognizance or purposes of
prevention, arbitration, decision and
settlement, of any industrial or
agricultural dispute causing or likely
to cause a strike or lockout, arising
from differences as regards wages,
shares or compensation, hours of
labor or conditions of tenancy or
employment, between landlords and
tenants or farm-laborers, provided
that the number of employees,
laborers or tenants of farm-laborers
involved exceeds thirty, and such
industrial or agricultural dispute is
submitted to the Court by the
Secretary of Labor or by any or both
of the parties to the controversy and
certified by the Secretary of labor as
existing and proper to be by the
Secretary of Labor as existing and
proper to be dealth with by the Court
for the sake of public interest.
(Section 4, ibid.) It shall, before
hearing the dispute and in the course
of such hearing, endeavor to
reconcile the parties and induce them
to settle the dispute by amicable
agreement. (Paragraph 2, section 4,
ibid.) When directed by the President
of the Philippines, it shall investigate
and study all industries established in
a designated locality, with a view to
determinating the necessity and
fairness of fixing and adopting for
such industry or locality a minimum
wage or share of laborers or tenants,
or a maximum "canon" or rental to
be paid by the "inquilinos" or tenants
or less to landowners. (Section 5,
ibid.) In fine, it may appeal to
voluntary arbitration in the
settlement of industrial disputes; may
employ mediation or conciliation for
that purpose, or recur to the more
effective system of official
investigation and compulsory
arbitration in order to determine
specific controversies between labor
and capital industry and in
agriculture. There is in reality here a
mingling of executive and judicial
functions, which is a departure from
the rigid doctrine of the separation of
governmental powers.
In the case of Goseco vs. Court of
Industrial Relations et al., G.R. No.
46673, promulgated September 13,
1939, we had occasion to joint out
that the Court of Industrial Relations
et al., G. R. No. 46673, promulgated
September 13, 1939, we had
occasion to point out that the Court
of Industrial Relations is not
narrowly constrained by technical
rules of procedure, and the Act
requires it to "act according to justice
and equity and substantial merits of
the case, without regard to
technicalities or legal forms and shall
not be bound by any technicalities or
legal forms and shall not be bound
by any technical rules of legal
evidence but may inform its mind in
such manner as it may deem just and
equitable." (Section 20,
Commonwealth Act No. 103.) It
73
shall not be restricted to the specific
relief claimed or demands made by
the parties to the industrial or
agricultural dispute, but may include
in the award, order or decision any
matter or determination which may
be deemed necessary or expedient
for the purpose of settling the dispute
or of preventing further industrial or
agricultural disputes. (section 13,
ibid.) And in the light of this
legislative policy, appeals to this
Court have been especially regulated
by the rules recently promulgated by
the rules recently promulgated by
this Court to carry into the effect the
avowed legislative purpose. The fact,
however, that the Court of Industrial
Relations may be said to be free
from the rigidity of certain
procedural requirements does not
mean that it can, in justifiable cases
before it, entirely ignore or disregard
the fundamental and essential
requirements of due process in trials
and investigations of an
administrative character. There are
primary rights which must be
respected even in proceedings of this
character:
(1) The first of these rights is the
right to a hearing, which includes the
right of the party interested or
affected to present his own case and
submit evidence in support thereof.
In the language of Chief Hughes, in
Morgan v. U.S., 304 U.S. 1, 58 S. Ct.
773, 999, 82 Law. ed. 1129, "the
liberty and property of the citizen
shall be protected by the rudimentary
requirements of fair play.
(2) Not only must the party be given
an opportunity to present his case
and to adduce evidence tending to
establish the rights which he asserts
but the tribunal must consider the
evidence presented. (Chief Justice
Hughes in Morgan v. U.S. 298 U.S.
468, 56 S. Ct. 906, 80 law. ed. 1288.)
In the language of this court in
Edwards vs. McCoy, 22 Phil., 598,
"the right to adduce evidence,
without the corresponding duty on
the part of the board to consider it, is
vain. Such right is conspicuously
futile if the person or persons to
whom the evidence is presented can
thrust it aside without notice or
consideration."
(3) "While the duty to deliberate
does not impose the obligation to
decide right, it does imply a
necessity which cannot be
disregarded, namely, that of having
something to support it is a nullity, a
place when directly attached."
(Edwards vs. McCoy, supra.) This
principle emanates from the more
fundamental is contrary to the
vesting of unlimited power
anywhere. Law is both a grant and a
limitation upon power.
(4) Not only must there be some
evidence to support a finding or
conclusion (City of Manila vs.
Agustin, G.R. No. 45844,
promulgated November 29, 1937,
XXXVI O. G. 1335), but the
evidence must be "substantial."
(Washington, Virginia and Maryland 59 S. Ct. 206, 83 Law. ed. No. 4,
Coach Co. v. national labor Adv. Op., p. 131.)"
Relations Board, 301 U.S. 142, 147,
57 S. Ct. 648, 650, 81 Law. ed. 965.)
It means such relevant evidence as a
(5) The decision must be rendered on
reasonable mind accept as adequate
the evidence presented at the
to support a conclusion."
hearing, or at least contained in the
(Appalachian Electric Power v.
record and disclosed to the parties
National Labor Relations Board, 4
affected. (Interstate Commence
Cir., 93 F. 2d 985, 989; National
Commission vs. L. & N. R. Co., 227
Labor Relations Board v. Thompson
U.S. 88, 33 S. Ct. 185, 57 Law. ed.
Products, 6 Cir., 97 F. 2d 13, 15;
431.) Only by confining the
Ballston-Stillwater Knitting Co. v.
administrative tribunal to the
National Labor Relations Board, 2
evidence disclosed to the parties, can
Cir., 98 F. 2d 758, 760.) . . . The
the latter be protected in their right to
statute provides that "the rules of
know and meet the case against
evidence prevailing in courts of law
them. It should not, however, detract
and equity shall not be controlling.'
from their duty actively to see that
The obvious purpose of this and
the law is enforced, and for that
similar provisions is to free
purpose, to use the authorized legal
administrative boards from the
methods of securing evidence and
compulsion of technical rules so that
informing itself of facts material and
the mere admission of matter which
relevant to the controversy. Boards
would be deemed incompetent inn
of inquiry may be appointed for the
judicial proceedings would not
purpose of investigating and
invalidate the administrative order.
determining the facts in any given
(Interstate Commerce Commission v.
case, but their report and decision are
Baird, 194 U.S. 25, 44, 24 S. Ct.
only advisory. (Section 9,
563, 568, 48 Law. ed. 860; Interstate
Commonwealth Act No. 103.) The
Commerce Commission v. Louisville
Court of Industrial Relations may
and Nashville R. Co., 227 U.S. 88,
refer any industrial or agricultural
93 33 S. Ct. 185, 187, 57 Law. ed.
dispute or any matter under its
431; United States v. Abilene and
consideration or advisement to a
Southern Ry. Co. S. Ct. 220, 225, 74
local board of inquiry, a provincial
Law. ed. 624.) But this assurance of
fiscal. a justice of the peace or any
a desirable flexibility in
public official in any part of the
administrative procedure does not go
Philippines for investigation, report
far as to justify orders without a
and recommendation, and may
basis in evidence having rational
delegate to such board or public
probative force. Mere
official such powers and functions as
uncorroborated hearsay or rumor
the said Court of Industrial Relations
does not constitute substantial
may deem necessary, but such
evidence. (Consolidated Edison Co.
delegation shall not affect the
v. National Labor Relations Board,
74
exercise of the Court itself of any of
its powers. (Section 10, ibid.)
(6) The Court of Industrial Relations
or any of its judges, therefore, must
act on its or his own independent
consideration of the law and facts of
the controversy, and not simply
accept the views of a subordinate in
arriving at a decision. It may be that
the volume of work is such that it is
literally Relations personally to
decide all controversies coming
before them. In the United States the
difficulty is solved with the
enactment of statutory authority
authorizing examiners or other
subordinates to render final decision,
with the right to appeal to board or
commission, but in our case there is
no such statutory authority.
(7) The Court of Industrial Relations
should, in all controversial questions,
render its decision in such a manner
that the parties to the proceeding can
know the various issues involved,
and the reasons for the decision
rendered. The performance of this
duty is inseparable from the
authority conferred upon it.
In the right of the foregoing
fundamental principles, it is
sufficient to observe here that, except
as to the alleged agreement between
the Ang Tibay and the National
Worker's Brotherhood (appendix A),
the record is barren and does not
satisfy the thirst for a factual basis
upon which to predicate, in a
national way, a conclusion of law.
This result, however, does not now
preclude the concession of a new
trial prayed for the by respondent
National Labor Union, Inc., it is
alleged that "the supposed lack of
material claimed by Toribio Teodoro
was but a scheme adopted to
systematically discharged all the
members of the National Labor
Union Inc., from work" and this
avernment is desired to be proved by
the petitioner with the "records of the
Bureau of Customs and the Books of
Accounts of native dealers in
leather"; that "the National Workers
Brotherhood Union of Ang Tibay is
a company or employer union
dominated by Toribio Teodoro, the
existence and functions of which are
illegal." Petitioner further alleges
under oath that the exhibits attached
to the petition to prove his
substantial avernments" are so
inaccessible to the respondents that
even within the exercise of due
diligence they could not be expected
to have obtained them and offered as
evidence in the Court of Industrial
Relations", and that the documents
attached to the petition "are of such
far reaching importance and effect
that their admission would
necessarily mean the modification
and reversal of the judgment
rendered herein." We have
considered the reply of Ang Tibay
and its arguments against the
petition. By and large, after
considerable discussions, we have
come to the conclusion that the
interest of justice would be better
served if the movant is given
opportunity to present at the hearing
the documents referred to in his
motion and such other evidence as
may be relevant to the main issue
involved. The legislation which
created the Court of Industrial
Relations and under which it acts is
new. The failure to grasp the
fundamental issue involved is not
entirely attributable to the parties
adversely affected by the result.
Accordingly, the motion for a new
trial should be and the same is
hereby granted, and the entire record
of this case shall be remanded to the
Court of Industrial Relations, with
instruction that it reopen the case,
receive all such evidence as may be
relevant and otherwise proceed in
accordance with the requirements set
forth hereinabove. So ordered.
SECOND DIVISION
G.R. No. L-56180 October 16, 1986
ATENEO DE MANILA
UNIVERSITY, petitioner,
vs.
COURT OF APPEALS, and
SPOUSES ROMEO G. GUANZON
and TERESITA REGALADO,
respondents.
Ernesto P. Pangalangan for
petitioner.
Mirano, Mirano & Associates for
private respondents.
GUTIERREZ, JR., J.:
In a letter-complaint dated December
13, 1967 addressed to Rev. William
Welsh S.J., Dean of Men, Dean of
Resident Students, and Chairman of
the Board of Discipline, College of
Arts and Sciences, Ateneo de
Manila, Carmelita Mateo, a waitress
in the cafeteria of Cervini Hall inside
the university campus charged Juan
Ramon Guanzon, son of private
respondents Romeo Guanzon and
Teresita Regalado, and a boarder and
75
first year student of the university
with unbecoming conduct committed
on December 12, 1967 at about 5:15
in the evening at the Cervini Hall's
cafeteria, as follows:
xxx xxx xxx
Mr. Guanzon, a boarder at Cervini
who I think comes from Bacolod,
was asking for "siopao." I was at the
counter and I told him that the
"siopao" had still to be heated and
asked him to wait for a while. Then
Mr. Guanzon started mumbling bad
words directed to me, in the hearing
presence of other boarders. I asked
him to stop cursing, and he told me
that was none of my business. Since
he seemed impatient, I was going to
give back his money without any
contempt. (sic) He retorted that he
did not like to accept the money. He
got madder and started to curse
again. Then he threatened to strike
me with his fist. I tried to avoid this.
But then he actually struck me in my
left temple. Before he could strike
again, his fellow boarders held him
and Dr. Bella and Leyes coaxed him
to stop; I got hold of a bottle so I
could dodge him. It was then that Fr.
Campbell arrived. The incident was
hidden from Fr. Campbell by the
boarders. I could not tell him myself
as I had gone into the kitchen crying
because I was hurt.
The university conducted an
investigation of the slapping
incident. On the basis of the
investigation results, Juan Ramon
was dismissed from the university.
The dismissal of Juan Ramon
triggered off the filing of a complaint
for damages by his parents against
the university in the then Court of
First Instance of Negros Occidental
at Bacolod City. The complaint
states that Juan Ramon was expelled
from school without giving him a
fair trial in violation of his right to
due process and that they are
prominent and well known residents
of Bacolod City, with the
unceremonious expulsion of their
son causing them actual, moral, and
exemplary damages as well as
attorney's fees.
In its answer, the university denied
the material allegations of the
complaint and justified the dismissal
of Juan Ramon on the ground that
his unbecoming behavior is contrary
to good morals, proper decorum, and
civility, that such behavior subjected
him as a student to the university's
disciplinary regulations' action and
sanction and that the university has
the sole prerogative and authority at
any time to drop from the school a
student found to be undesirable in
order to preserve and maintain its
integrity and discipline so
indispensable for its existence as an
institution of learning.
After due trial, the lower court found
for the Guanzons and ordered the
university to pay them P92.00 as
actual damages; P50,000.00 as moral
damages; P5,000.00 as attorney's
fees and to pay the costs of the suit.
Upon appeal to the Court of Appeals
by the university, the trial court's
decision was initially reversed and
set aside. The complaint was
dismissed.
However, upon motion for
reconsideration filed by the
Guanzons, the appellate court
reversed its decision and set it aside
through a special division of five. In
the resolution issued by the appellate
court, the lower court's decision was
reinstated. The motion for
reconsideration had to be referred to
a special division of five in view of
the failure to reach unanimity on the
resolution of the motion, the vote of
the regular division having become 2
to 1.
The petitioner now asks us to review
and reverse the resolution of the
division of five on the following
grounds:
ONE
THE RESOLUTION OF THE
DIVISION OF FIVE COMMITTED
A SERIOUS AND GRAVE ERROR
OF LAW IN RULING THAT
PRIVATE RESPONDENTS WERE
NOT AFFORDED DUE PROCESS
IN THE DISCIPLINE CASE
AGAINST THEIR SON, JUAN
RAMON GUANZON.
TWO
THE RESOLUTION OF THE
DIVISION OF FIVE
ERRONEOUSLY RULED THAT
THE RESORT TO JUDICIAL
REMEDY BY PRIVATE
RESPONDENTS DID NOT
VIOLATE THE RULE ON
FINALITY OF
ADMINISTRATION ACTION OR
EXHAUSTION OF
ADMINISTRATIVE REMEDIES.
THREE
THE FINDING AND
CONCLUSIONS OF THE
RESOLUTION OF THE DIVISION
OF FIVE ARE TAINTED WITH
GRAVE ABUSE OF DISCRETION,
OR ARE CONFLICTING, OR
CONTRARY TO THE EVIDENCE
IN THE CASE.
In reversing its own decision, the
appellate court relied heavily on the
findings of the Director of Private
Schools affirmed by the Minister of
76
Education and the findings of the
lower Court to the effect that due
process of law was not observed by
the petitioner when it dismissed the
private respondents' son Juan
Ramon. The resolution invoked the
rule that findings of facts by
administrative officers in matters
falling within their competence will
not generally be reviewed by the
courts, as well as the principle that
findings of facts of the trial court are
entitled to great weight and should
not be disturbed on appeal.
The conclusions of the Court of
Appeals in its split decision are not
sustained by the facts on record.
The statement regarding the finality
given to factual findings of trial
courts and administrative tribunals is
correct if treated as a general
principle. The general principle,
however, is subject to well
established exceptions.
We disregard the factual findings of
trial courts when-(l) the conclusion is
a finding grounded on speculations,
surmises, and conjectures; (2) the
inferences made are manifestly
mistaken, absurd, or impossible; (3)
there is a grave abuse of discretion;
(4) there is a misapprehension of
facts; and (5) the court, in arriving at
its findings, went beyond the issues
of the case and the same are contrary
to the admissions of the parties or the
evidence presented. (Gomez v.
Intermediate Appellate Court, 135
SCRA 620; Republic v. Court of
Appeals, 132 SCRA 514; Carolina
Industries, Inc. v. CMS Stock
Brokerage, Inc., 97 SCRA 734; and
Bacayo v. Genato, 135 SCRA 668).
A similar rule applies to
administrative agencies.
By reason of their special knowledge
and expertise gained from the
handling of specific matters falling
under their respective jurisdictions,
we ordinarily accord respect if not
finality to factual findings of
administrative tribunals. However,
there are exceptions to this rule and
judicial power asserts itself
whenever the factual findings are not
supported by evidence; where the
findings are vitiated by fraud,
imposition, or collusion; where the
procedure which led to the factual
findings is irregular; when palpable
errors are committed; or when a
grave abuse of discretion,
arbitrariness, or capriciousness is
manifest. (International Hardwood
and Veneer Co., of the Philippines v.
Leogardo, 117 SCRA 967; Baguio
Country Club Corporation v.
National Labor Relations
Commission, 118 SCRA 557;
Sichangco v. Commissioner of
Immigration, 94 SCRA 61; and
Eusebio v. Sociedad Agricola de
Balarin, 16 SCRA 569).
The Court of Appeals ruled that Juan
Ramon Guanzon was not accorded
due process. We fail to see what, in
the records, made the respondent
court reverse its earlier and correct
finding that there was due process.
The original decision, penned by
then Associate and now Presiding
Justice Emilio A. Gancayco reviews
the facts on record to show that the
procedures in the expulsion case
were fair, open, exhaustive, and
adequate.
The decision states:
First, after the slapping incident
which happened on December 12,
1967, Fr. Welsh in his capacity as
Chairman of the Board of Discipline
upon receipt of the letter-complaint
(Exh. 2) of Carmelita Mateo
conducted a preliminary inquiry by
interviewing the companions and
friends of Juan Ramon Guanzon who
were also at the cafeteria. They
confirmed the incident in question.
(Exhs. 5, 6, 7 and 9).
Second, Fr. Welsh, finding that there
was probable cause against Mr.
Guanzon, prepared a memorandum
to the members of the Board of
Discipline dated December 16, 1967
(Exh. 8) and delivered a copy each to
Fr. Francisco Perez, Dr. Amada
Capawan, Mr. Piccio and Dr. Reyes.
Third, on December 14, 1967, Mr.
Guanzon was fully informed of the
accusation against him when Fr.
Welsh read the letter-complaint of
Carmelita Mateo and he admitted the
truth of the charge. (tsn., pp. 38-39,
May 9, 1970; Exh. 4).
Fourth, Fr. Welsh also sent separate
letters to Rev. Antonio Cuna,
Student Counselor of the College of
Arts and Sciences dated December
18, 1967 and Rev. James Culligan,
Director of Guidance of the College
of Arts and Sciences dated
December 18, 1967 seeking any
information for guidance in the
action of the Board of Discipline
regarding the case of Mr. Guanzon.
(Exhs. 10-11)
Fifth, notice of the meeting of the
Board of Discipline set on December
19, 1967 was posted at the Bulletin
Board of the College of Arts and
Sciences and also at Dormitory Halls
(tsn., pp. 21-22, July 21, 1970) The
Secretary of the Dean of Discipline
personally notified Mr. Guanzon of
the meeting of the Board on
December 19, 1967, he was told to
seek the help of his guardians,
parents and friends including the
student counsellors in the residence
halls and College of Arts and
Sciences. (tsn., p. 18, July 21, 1970)
77
Sixth, despite notice of the Board of
Discipline on December 19, 1967,
Mr. Guanzon did not care to inform
his parents or guardian knowing
fully well the seriousness of the
offense he had committed and
instead he spoke for himself and
admitted to have slapped Carmelita
Mateo. He then asked that he be
excused as he wanted to catch the
boat for Bacolod City for the
Christmas vacation.
Seventh, the decision of the Board of
Discipline was unanimous in
dropping from the rolls of students
Mr. Guanzon (Exh. 12) which was
elevated to the office of the Dean of
Arts and Sciences, Rev. Joseph A.
Galdon, who after a review of the
case found no ground to reverse the
decision of the Board of Discipline.
(Exh. 13) The case was finally
elevated to the President of the
Ateneo University who sustained the
decision of the Board of Discipline
(Exh. 21-A, p. 6) A motion for
reconsideration was filed by the
President of the Student Council in
behalf of Mr. Guanzon (Exh. 15) but
the same was denied by the President
of the University.
Eighth, when the decision of the
Board of Discipline was about to be
carried out, Mr. Guanzon voluntarily
applied for honorable dismissal. He
went around to the officials of the
university to obtain his clearance and
this was approved on January 8,
1968. (Exh. 3, tsn., p. 58, May 6,
1970)
Ninth, Mr. Romeo Guanzon, father
of Juan Ramon Guanzon arranged
for full and complete refund of his
tuition fee for the entire second
semester of the school year 1967-68.
Juan Ramon was never out of school.
He was admitted at the De la Salle
College of Bacolod City and later
transferred to another Jesuit School.
From the above proceedings that
transpired it can not be said that Juan
Ramon Guanzon was denied due
proems of law. On the contrary, we
find that he was given the full
opportunity to be heard to be fully
informed of the charge against him
and to be confronted of the witnesses
face to face. And since he chose to
remain silent and did not bother to
inform his parents or guardian about
the disciplinary action taken against
him by the defendant university,
neither he nor his parents should find
reason to complain.
xxx xxx xxx
When the letter-complaint was read
to Juan Ramon, he admitted the
altercation with the waitress and his
slapping her on the face. Rev. Welsh
did not stop with the admission. He
interviewed Eric Tagle, Danny Go,
Roberto Beriber, and Jose Reyes,
friends of Juan Ramon who were
present during the incident.
The Board of Discipline was made informed about the December 19,
up of distinguished members of the 1967 meeting of the Board of
faculty-Fr. Francisco Perez, Biology Discipline, he was asked to seek
Department Chairman; Dr. Amando advice and assistance from his
Capawan, a Chemistry professor; guardian and/or parents.
Assistant Dean Piccio of the College;
and Dr. Reyes of the same College.
There is nothing in the records to
In the natural course of things, Juan
cast any doubt on their competence
Ramon is assumed to have reported
and impartiality insofar as this
this serious matter to his parents. The
disciplinary investigation is
fact that he chose to remain silent
concerned.
and did not inform them about his
case, not even when he went home to
Bacolod City for his Christmas
Juan Ramon himself appeared before vacation, was not the fault of the
the Board of Discipline. He admitted petitioner university.
the slapping incident, then begged to
be excused so he could catch the
boat for Bacolod City. Juan Ramon,
Moreover, notwithstanding the non-
therefore, was given notice of the
participation of the private
proceedings; he actually appeared to
respondents, the university, as stated
present his side; the investigating
earlier, undertook a fair and
board acted fairly and objectively;
objective investigation of the
and all requisites of administrative
slapping incident.
due process were met.
Due process in administrative
We do not share the appellate court's
proceedings also requires
view that there was no due process
consideration of the evidence
because the private respondents, the
presented and the existence of
parents of Juan Ramon were not
evidence to support the decision
given any notice of the proceedings.
(Halili v. Court of Industrial
Relations, 136 SCRA 112).
Juan Ramon, who at the time was 18
years of age, was already a college
While it may be true that Carmelita
student, intelligent and mature
Mateo was not entirely blameless for
enough to know his responsibilities.
what happened to her because she
In fact, in the interview with Rev.
also shouted at Juan Ramon and tried
Welsh, he even asked if he would be
to hit him with a cardboard box top,
expelled because of the incident. He
this did not justify Juan Ramon's
was fully cognizant of the gravity of
slapping her in the face. The
the offense he committed. When
evidence clearly shows that the
78
altercation started with Juan Ramon's
utterance of the offensive language
"bilat ni bay," an Ilongo phrase
which means sex organ of a woman.
It was but normal on the part of
Mateo to react to the nasty remark.
Moreover, Roberto Beriber, a friend
of Juan Ramon who was present
during the incident told Rev. Welsh
during the investigation of the case
that Juan Ramon made threatening
gestures at Mateo prompting her to
pick up a cardboard box top which
she threw at Juan Ramon. The
incident was in public thus adding to
the humiliation of Carmelita Mateo.
There was "unbecoming conduct"
and pursuant to the Rules of
Discipline and Code of Ethics of the
university, specifically under the
1967-1969 Catalog containing the
rules and academic regulations
(Exhibit 19), this offense constituted
a ground for dismissal from the
college. The action of the petitioner
is sanctioned by law. Section 107 of
the Manual of Regulations for
Private Schools recognizes violation
of disciplinary regulations as valid
ground for refusing re-enrollment of
a student (Tangonan v. Pano, 137
SCRA 245).
Before Juan Ramon was admitted to
enroll, he received (1) the College of
Arts and Sciences Handbook
containing the general regulations of
the school and the 1967-1969 catalog
of the College of Arts and Sciences
containing the disciplinary rules and
academic regulations and (2) a copy
of the Rules and Regulations of the
Cervini-Elizo Halls of the petitioner
university one of the provisions of
which is as follows: under the title
"Dining Room"-"The kitchen help
and server should always be treated
with civility." Miss Mateo was
employed as a waitress and precisely
because of her service to boarders,
not to mention her sex, she deserved
more respect and gracious treatment.
The petitioner is correct in stating
that there was a serious error of law
in the appellate court's ruling on due
process.
The petitioner raises the issue of
"exhaustion of administrative
remedies" in view of its pending
appeal from the decision of the
Ministry of Education to the
President of the Philippines. It argues
that the private respondents'
complaint for recovery of damages
filed in the lower court was
premature.
The issue raised in court was
whether or not the private
respondents can recover damages as
a result of the dismissal of their son
from the petitioner university. This is
a purely legal question and nothing
of an administrative nature is to or
can be done. (Gonzales v.
Hechanova, 9 SCRA 230; Tapales v.
University of the Philippines, 7
SCRA 553; Limoico v. Board of
Administrators, (PVA), 133 SCRA
43; Malabanan v. Ramonte, 129
SCRA 359). The case was brought
pursuant to the law on damages college authorities deferred any
provided in the Civil Code. The undue action until a definitive
jurisdiction to try the case belongs to decision had been rendered. The
the civil courts. whole procedure of the disciplinary
process was set up to protect the
privacy of the student involved.
There is absolutely no indication ot
There was no need to await action
malice,. fraud, and improper or
from Malacañang.
willful motives or conduct on the
part of the Ateneo de Manila
University in this case.
This brings us to the final issue
which is whether or not the private
respondents are entitled to damages.
WHEREFORE, the instant petition is
There is no basis for the recovery of
hereby GRANTED. The appellate
damages. Juan Ramon was afforded
court's resolution dated January 26,
due process of law. The penalty is
1981 is REVERSED and SET
based on reasonable rules and
ASIDE. The appellate court's
regulations applicable to all students
decision dated March 15, 1979 is
guilty of the same offense. He never
REINSTATED.
was out of school. Before the
decision could be implemented, Juan
Ramon asked for an honorable
dismissal which was granted. He SO ORDERED.
then enrolled at the De la Salle
University of Bacolod City and later
transferred to another Jesuit school
Moreover, his full and complete
tuition fees for the second semester
were refunded through the
representation of Mr. Romeo
Guanzon, Juan Ramon's father.
It is unfortunate of the parents
suffered some embarrassment
because of the incident. However,
their predicament arose from the
misconduct of their own son who, in
the exuberance of youth and
unfortunate loss of self control, did
something which he must have, later,
regretted. There was no bad faith on
the part of the university. In fact, the
79
EN BANC
G.R. No. 89317 May 20, 1990
ARIEL NON, REX MAGANA,
ALVIN AGURA, NORMANDY
OCCIANO, JORGE DAYAON,
LOURDES BANARES,
BARTOLOME IBASCO,
EMMANUEL BARBA, SONNY
MORENO, GIOVANI PALMA,
JOSELITO VILLALON, LUIS
SANTOS, and DANIEL TORRES,
petitioners,
vs.
HON. SANCHO DANES II, in his
capacity as the Presiding Judge of
5th Regional Trial Court, Br. 38,
Daet, Camarines Norte; and
MABINI COLLEGES, INC.,
represented by its president
ROMULO ADEVA and by the
chairman of the Board of Trustees,
JUSTO LUKBAN, respondents.
Antonio A. Ayo Jr. and Soliman M.
Santos, Jr., for petitioners
Pedro A. Venida Agustin A. Ferrer
and Gil F. Echaro for private
respondents.
CORTES, J.:
Petitioners urge the Court en banc to
review and reverse the doctrine laid
down in Alcuaz, et al. v. Philippine
School of Business Administration,
et al., G.R. No. 76353, May 2, 1988,
161 SCRA 7, to the effect that a
college student, once admitted by the
school, is considered enrolled only
for one semester and, hence, may be
refused readmission after the
semester is over, as the contract
between the student and the school is
deemed terminated.
Petitioners, students in private
respondent Mabini Colleges, Inc. in
Daet, Camarines Norte, were not
allowed to re-enroll by the school for
the academic year 1988-1989 for
leading or participating in student
mass actions against the school in the
preceding semester. The subject of
the protests is not, however, made
clear in the pleadings.
Petitioners filed a petition in the
court a quo seeking their readmission
or re-enrollment to the school, but
the trial court dismissed the petition
in an order dated August 8, 1988; the
dispositive portion of which reads:
WHEREFORE, premises considered,
and the fact that the ruling in the
Alcuaz vs. PSBA is exactly on the
point at issue in this case but the
authority of the school regarding
admission of students, save as a
matter of compassionate equity —
when any of the petitioners would, at
the least, qualify for re-enrollment,
this petition is hereby DISMISSED.
SO ORDERED. [Rollo, p. 12-A.]
A motion for reconsideration was
filed, but this was denied by the trial
court on February 24, 1989 in this
wise:
Perhaps many will agree with the
critical comment of Joaquin G.
Bernas S.J., and that really there
must be a better way of treating
students and teachers than the
manner ruled (not suggested) by the
Supreme Court, the Termination of
Contract at the end of the semester,
that is.
But applicable rule in the case is that
enunciated by the Supreme Court in
the case of Sophia Alcuaz, et al. vs.
Philippine School of Business
Administration, Quezon City Branch
(PSBA), et al., G.R. No. 76353, May
2, 1988; that of the termination at the
end of the semester, reason for the
critical comments of Joaquin G.
Bernas and Doods Santos, who both
do not agree with the ruling.
Petitioners' claim of lack of due
process cannot prosper in view of
their failure to specifically deny
respondent's affirmative defenses
that "they were given all the chances
to air their grievances on February 9,
10, 16, and 18, 1988, and also on
February 22, 1988 during which they
were represented by Atty. Jose L.
Lapak" and that on February 22,
1988, the date of the resumption of
classes at Mabini College, petitioners
continued their rally picketing, even
though without any renewal permit,
physically coercing students not to
attend their classes, thereby
disrupting the scheduled classes and
depriving a great majority of
students of their right to be present in
their classes.
Against this backdrop, it must be
noted that the petitioners waived
their privilege to be admitted for re-
enrollment with respondent college
when they adopted, signed, and used
its enrollment form for the first
semester of school year 1988-89.
Said form specifically states that:
The Mabini College reserves the
right to deny admission of students
whose scholarship and attendance
are unsatisfactory and to require
withdrawal of students whose
conduct discredits the institution
and/or whose activities unduly
disrupts or interfere with the efficient
operation of the college. Students,
therefore, are required to behave in
accord with the Mabini College code
of conduct and discipline.
80

In addition, for the same semester,
petitioners duly signed pledges
which among others uniformly reads:
In consideration of my admission to
the Mabini College and of my
privileges as student of this
institution, I hereby pledge/ promise
under oath to abide and comply with
all the rules and regulations laid
down by competent authorities in the
College Department or School in
which I am enrolled. Specifically:
xxx xxx xxx
3. I will respect my Alma
Matter the Mabini College, which I
represent and see to it that I conduct
myself in such a manner that the
college wig not be put to a bad light;
xxx xxx xxx
9. I will not release false or
unauthorized announcement which
tend to cause confusion or disrupt the
normal appreciation of the college.
Moreover, a clear legal right must
first be established for a petition for
mandamus to prosper (Sec. 3, Rule
65). It being a mere privilege and not
a legal right for a student to be
enrolled or reenrolled, respondent
Mabini College is free to admit or
not admit the petitioners for re-
enrollment in view of the academic
freedom enjoyed by the school in
accordance with the Supreme Court
rulings in the cases of Garcia vs.
Faculty [Admission Committee]
(G.R. No. 40779, November 28,
1975) and Tangonon vs. Pano, et al.
(L-45157, June 27, 1985).
WHEREFORE, premises and
jurisprudence considered, and for
lack of merit, the motion for
reconsideration of the order of this
Court dated August 8, 1988 is hereby
DENIED.
SO ORDERED. [Rollo pp. 15-16.]
Hence, petitioners filed the instant
petition for certiorari with prayer for
preliminary mandatory injunction.
The case was originally assigned to
the Second Division of the Court,
which resolved on April 10, 1989 to
refer the case to the Court of Appeals
for proper determination and
disposition. The Court of Appeals
ordered respondents to comment on
the petition and set the application
for issuance of a writ of preliminary
mandatory injunction for hearing.
After considering the comment and
hearing the injunction application,
the Court of Appeals resolved on
May 22, 1989 to certify the case
back to the Supreme Court
considering that only pure questions
of law were raised.
The case was assigned to the Third
Division of the Court, which then
transferred it to the Court en banc on
August 21, 1989 considering that the
issues raised are jurisdictional. On
September 14, 1989, the Court en
banc accepted the case and required
respondents to comment.
Respondents filed their comment on
November 13, 1989. Petitioners were
required to reply. As reply, they filed
a pleading entitled "Counter-
Comment," to which respondents
filed a rejoinder entitled "Reply to
Counter-Comment To this
petitioners filed a "Rejoinder to
Reply."
The issues having been joined, the
case was deemed submitted.
At the heart of the controversy is the
doctrine encapsuled in the following
excerpt from Alcuaz:
It is beyond dispute that a student
once admitted by the school is
considered enrolled for one semester.
It is provided in Paragraph 137
Manual of Regulations for Private
Schools, that when a college student
registers in a school, it is understood
that he is enrolling for the entire
semester. Likewise, it is provided in
the Manual, that the "written
contracts" required for college
teachers are for "one semester." It is
thus evident that after the close of
the first semester, the PSBA-QC no
longer has any existing contract
either with the students or with the
intervening teachers. Such being the
case, the charge of denial of due
process is untenable. It is a time-
honored principle that contracts are
respected as the law between the
contracting parties (Henson vs.
Intermediate Appellate Court, et al.,
G.R. No. 72456, February 19, 1987,
citing: Castro vs. Court of Appeals,
99 SCRA 722; Escano vs. Court of
Appeals, 100 SCRA 197). The
contract having been terminated,
there is no more contract to speak of.
The school cannot be compelled to
enter into another contract with said
students and teachers. "The courts,
be they the original trial court or the
appellate court, have no power to
make contracts for the parties.'
(Henson vs. Intermediate Appellate
Court, et al., supra). [At 161 SCRA
17-18; Emphasis supplied.]
In Alcuaz, the Second Division of
the Court dismissed the petition filed
by the students, who were barred
from re-enrolling after they led mass
assemblies and put up barricades, but
it added that "in the light of
compassionate equity, students who
were, in view of the absence of
academic deficiencies, scheduled to
graduate during the school year
when this petition was filed, should
81
be allowed to re-enroll and to
graduate in due time." [At 161
SCRA 22.] Mr. Justice Sarmiento
dissented from the majority opinion.
A motion for reconsideration was
filed by the dismissed teachers in
Alcuaz. The students did not move
for reconsideration. The Court en
banc, to which the case had been
transferred, denied the motion for
reconsideration in a Resolution dated
September 29, 1989, but added as an
obiter dictum:
In conclusion, We wish to reiterate
that while We value the right of
students to complete their education
in the school or university of their
choice, and while We fully respect
their right to resort to rallies and
demonstrations for the redress of
their grievances and as part of their
freedom of speech and their right to
assemble, still such rallies,
demonstrations, and assemblies must
always be conducted peacefully, and
without resort to intimidation,
coercion, or violence. Academic
freedom in all its forms, demands the
full display of discipline. To hold
otherwise would be to subvert
freedom into degenerate license.
The majority's failure to expressly
repudiate the "termination of
contract" doctrine enunciated in the
decision provoked several dissents
on that issue. Although seven (7)
members of the Court * disagreed
with the Second Division's dismissal
of the students petition, a definitive
ruling on the issue could not have
been made because no timely motion
for reconsideration was filed by the
students. (As stated above, the
motion for reconsideration was filed
by the dismissed teachers.)
Be that as it may, the reassessment of
the doctrine laid down in Alcuaz,
insofar as it allowed schools to bar
the readmission or re-enrollment of
students on the ground of
termination of contract, shall be
made in this case where the issue is
squarely raised by petitioners
[Petition, p. 4; Rollo, p. 5].
Initially, the case at bar must be put
in the proper perspective. This is not
a simple case of a school refusing
readmission or re-enrollment of
returning students. Undisputed is the
fact that the refusal to readmit or re-
enroll petitioners was decided upon
and implemented by school
authorities as a reaction to student
mass actions directed against the
school. Petitioners are students of
respondent school who, after leading
and participating in student protests,
were denied readmission or re-
enrollment for the next semester.
This is a case that focuses on the
right to speech and assembly as
exercised by students vis-a-vis the
right of school officials to discipline
them.
Thus, although respondent judge
believed himself bound by the ruling
in Alcuaz [Order dated August 8,
1988; Rollo, pp. 1212-A], he actually
viewed the issue as a conflict
between students' rights and the
school's power to discipline them, to
wit:
Students should not be denied their
constitutional and statutory right to
education, and there is such denial
when students are expelled or barred
from enrollment for the exercise of
their right to free speech and
peaceable assembly and/or subjected
to disciplinary action without abiding
with the requirements of due process.
Also, it is understandable for student
leaders to let loose extremely critical
and, at times, vitriolic language
against school authorities during a
student rally.
But the right of students is no license
and not without limit . . . [Order of
February 24, 1989; Rollo, p. 13.]
1. The Student Does Not
Shed His Constitutionally Protected
Rights at the Schoolgate.
Central to the democratic tradition
which we cherish is the recognition
and protection of the rights of free
speech and assembly. Thus, our
Constitution provides:
Sec. 4. No law shall be passed
abridging the freedom of speech, of
expression, or of the press, or the
right of the people peaceably to
assemble and petition the
government for redress of
grievances. [Art. III.]
This guarantee is not peculiar to the
1987 Constitution. A similar
provision was found in the 1973
Constitution, as amended [Art. VI,
sec. 9], the 1935 Constitution, as
amended [Art. III, sec. 81, the
Philippine Autonomy Act (Jones
Law) [Sec. 3, para. 13], and the
Philippine Bill of 1902 [Sec. 15,
para. 13]. Thus, as early as 1907, the
Court in People v. Apurado, 7 Phil.
422, upheld the right to speech and
assembly to overturn a conviction for
sedition. It said:
Section 5 of the Act No. 292 is as
follows:
All persons who rise publicly and
tumultuously in order to attain by
force or outside of legal methods any
of the following objects are guilty of
sedition:
xxx xxx xxx
2. To prevent the Insular
Government, or any provincial or
municipal government or any public
82
official, from freely exercising its or
his duties or the due execution of any
judicial or administrative order.
But this law must not be interpreted
so as to abridge "the freedom of
speech" or "the right of the people
peaceably to assemble and petition
the Government for redress of
grievances" guaranteed by the
express provisions of section 5 of
"the Philippine Bill."
xxx xxx xxx
It is rather to be expected that more
or less disorder will mark the public
assembly of the people to protest
against grievances whether real or
imaginary, because on such
occasions feeling is always wrought
to a high pitch of excitement, and the
greater the grievance and the more
intense the feeling, the less perfect,
as a rule, will be the disciplinary
control of the leaders over their
irresponsible followers. But if the
prosecution be permitted to seize
upon every instance of such
disorderly conduct by individual
members of a crowd as an excuse to
characterize the assembly as a
seditious and tumultuous rising
against the authorities, then the right
to assemble and to petition for
redress of grievances would become
a delusion and a snare and the
attempt to exercise it on the most
righteous occasion and in the most
peaceable manner would expose all
those who took part therein to the
severest and most unmerited
punishment, if the purposes which
they sought to attain did not happen
to be pleasing to the prosecuting
authorities. If instances of disorderly
conduct occur on such occasions, the
guilty individuals should be sought
out and punished therefor, but the
utmost discretion must be exercise in
drawing the line between disorderly
and seditious conduct and between
an essentially peaceable assembly
and a tumultuous uprising. [At pp.
424, 426.]
That the protection to the cognate
rights of speech and assembly
guaranteed by the Constitution is
similarly available to students is
well-settled in our jurisdiction. In the
leading case of Malabanan v.
Ramento, G.R. No. 62270, May 21,
1984, 129 SCRA 359, the Court,
speaking through Mr. Chief Justice
Fernando in an en banc decision,
declared:
xxx xxx xxx
4. Petitioners invoke their
rights to peaceable assembly and free
speech. They are entitled to do so.
They enjoy like the rest of the
citizens the freedom to express their
views and communicate their
thoughts to those disposed to listen
in gatherings such as was held in this
case. They do not, to borrow from
the opinion of Justice Fortas in
Tinker v. Des Moines Community
School District, "shed their
constitutional rights to freedom of
speech or expression at the
schoolhouse gate." While therefore,
the authority of educational
institutions over the conduct of
students must be recognized, it
cannot go so far as to be violative of
constitutional safeguards. [At pp.
367-368.]
The facts in Malabanan are only too
familiar in the genre of cases
involving student mass actions:
. . . Petitioners were officers of the
Supreme Student Council of
respondent [Gregorio Araneta]
University. They sought and were
granted by the school authorities a
permit to hold a meeting from 8:00
A.M. to 12:00 P.M. on August 27,
1982. Pursuant to such permit, along
with other students, they held a
general assembly at the Veterinary
Medicine and Animal Science
(VMAS) the place indicated in such
permit, not in the basketball court as
therein stated but at the respond floor
lobby. At such gathering they
manifested in vehement and vigorous
language their opposition to the
proposed merger of the Institute of
Animal Science with the Institute of
Agriculture. At 10:30 A.M., the
same day, they marched toward the
Life Science building and continued
their rally. It was outside the area
covered by their permit. They
continued their demonstration,
giving utterance to language severely
critical of the University authorities
and using megaphones in the
process. There was, as a result,
disturbance of the classes being held.
Also, the non-academic employees,
within hearing distance, stopped
their work because of the noise
created. They were asked to explain
on the same day why they should not
be held liable for holding an illegal
assembly. Then on September 9,
1982, they were informed through a
memorandum that they were under
preventive suspension for their
failure to explain the holding of an
illegal assembly in front of the Life
Science Building. The validity
thereof was challenged by petitioners
both before the Court of First
Instance of Rizal in a petition for
mandamus with damages against
private respondents and before the
Ministry of Education, Culture, and
Sports. On October 20, 1982,
respondent Ramento, as Director of
the National Capital Region, found
petitioners guilty of the charge of
having violated par. 146(c) of the
Manual for Private Schools more
specifically their holding of an
illegal assembly which was
characterized by the violation of the
permit granted resulting in the
disturbance of classes and oral
defamation. The penalty was
suspension for one academic year. . .
. [At pp. 363-364.]
The Court found the penalty imposed
on the students too severe and
reduced it to a one-week suspension.
83
The rule laid down in Malabanan
was applied with equal force in three
other en banc decisions of the Court.
In Villar v. Technological Institute of
the Philippines, G.R. No. 69198,
April 17, 1985, 135 SCRA 706, the
Court reiterated that the exercise of
the freedom of assembly could not
be a basis for barring students from
enrolling. It enjoined the school and
its officials from acts of surveillance,
blacklisting, suspension and refusal
to re-enroll. But the Court allowed
the non-enrollment of students who
clearly incurred marked academic
deficiency, with the following
caveat:
xxx xxx xxx
4. The academic freedom
enjoyed by ''institutions of higher
learning" includes the right to set
academic standards to determine
under what circumstances failing
grades suffice for the expulsion of
students. Once it has done so,
however, that standard should be
followed meticulously. It cannot be
utilized to discriminate against those
students who exercise their
constitutional rights to peaceable
assembly and free speech. If it does
so, then there is a legitimate
grievance by the students thus
prejudiced, their right to the equal
protection clause being disregarded.
[At p. 711.]
In Arreza v. Gregorio Araneta
University Foundation, G.R. No.
62297, June 19, 1985, 137 SCRA 94,
a case arising from almost the same
facts as those in Malabanan, the
Court rejected "the infliction of the
highly- disproportionate penalty of
denial of enrollment and the
consequent failure of senior students
to graduate, if in the exercise of the
cognate rights of free speech and
peaceable assembly, improper
conduct could be attributed to them.
[At p. 98].
In Guzman v. National University,
G.R. No. 68288, July 11, 1986, 142
SCRA 699, respondent school was
directed to allow the petitioning
students to re-enroll or otherwise
continue with their respective
courses, without prejudice to any
disciplinary proceedings that may be
conducted in connection with their
participation in the protests that led
to the stoppage of classes.
2. Permissible Limitations on
Student Exercise of Constitutional
Rights Within the School.
While the highest regard must be
afforded the exercise of the rights to
free speech and assembly, this
should not be taken to mean that
school authorities are virtually
powerless to discipline students. This
was made clear by the Court in
Malabanan, when it echoed Tinker v. requires observance of procedural
Des Moines Community School due process. Thus:
District, 393 US 503, 514: "But
conduct by the student, in class or
out of it, which for any reason —
. . . There are withal minimum
whether it stems from time, place, or
standards which must be met to
type of behavior — materially
satisfy the demands of procedural
disrupts classwork or involves
due process; and these are, that (1)
substantial disorder or invasion of
the students must be informed in
the rights of others is, of course, not
writing of the nature and cause of
immunized by the constitutional
any accusation against them; (2) they
guarantee of freedom of speech."
shall have the right to answer the
charges against them, with the
assistance of counsel, if desired; (3)
Thus, in Malabanan, the Court said: they shall be informed of the
evidence against them; (4) they shall
have the right to adduce evidence in
their own behalf; and (5) the
xxx xxx xxx
evidence must be duly considered by
the investigating committee or
official designated by the school
8. It does not follow, authorities to hear and decide the
however, that petitioners can be case. [At pp. 706-707].
totally absolved for the events that
transpired. Admittedly, there was a
violation of the terms of the permit.
Moreover, the penalty imposed must
The rally was held at a place other
be proportionate to the offense
than that specified, in the second
committed. As stated in Malabanan,
floor lobby, rather than the
"[i]f the concept of proportionality
basketball court, of the (VMAS)
between the offense committed and
building of the University.
sanction imposed is not followed, an
Moreover, it was continued longer
element of arbitrariness intrudes."
than the period allowed. According
[At p. 371].
to the decision of respondent
Ramento, the "concerted activity
[referring to such assembly went on
until 5:30 p.m." Private respondents 3. Circumventing Established
could thus, take disciplinary action. . Doctrine.
. . [ At pp. 370-371].
Malabanan was decided by the Court
But, as stated in Guzman, the in 1984. Since then, student mass
imposition of disciplinary sanctions actions have escalated not only
because of political events that
84
unfurled but also because of the
constantly raging controversy over
increases in tuition fees. But the
over-eager hands of some school
authorities were not effectively tied
down by the ruling in Malabanan.
Instead of suspending or expelling
student leaders who fell into disfavor
with school authorities, a new
variation of the same stratagem was
adopted by the latter: refusing the
students readmission or re-
enrollment on grounds not related to,
their alleged misconduct of "illegal
assembly" in leading or participating
in student mass actions directed
against the school. Thus, the spate of
expulsions or exclusions due to
"academic deficiency."
4. The Nature of the Contract
Between a School and its Student.
The Court, in Alcuaz, anchored its
decision on the "termination of
contract" theory. But it must be
repeatedly emphasized that the
contract between the school and the
student is not an ordinary contract. It
is imbued with public interest,
considering the high priority given
by the Constitution to education and
the grant to the State of supervisory
and regulatory powers over all
educational institutions [See Art.
XIV, secs. 1-2, 4(1)].
Respondent school cannot justify its
actions by relying on Paragraph 137
of the Manual of Regulations for
Private Schools, which provides that
"[w]hen a student registers in a
school, it is understood that he is
enrolling . . . for the entire semester
for collegiate courses," which the
Court in Alcuaz construed as
authority for schools to refuse
enrollment to a student on the ground
that his contract, which has a term of
one semester, has already expired.
The "termination of contract" theory
does not even find support in the
Manual. Paragraph 137 merely
clarifies that a college student enrolls
for the entire semester. It serves to
protect schools wherein tuition fees
are collected and paid on an
installment basis, i.e. collection and
payment of the downpayment upon
enrollment and the balance before
examinations. Thus, even if a student
does not complete the semester for
which he was enrolled, but has
stayed on for more than two weeks,
he may be required to pay his tuition
fees for the whole semester before he
is given his credentials for transfer.
This is the import of Paragraph 137,
subsumed under Section VII on
Tuition and Other Fees, which in its
totality provides:
137. When a student registers in
a school, it is understood that he is
enrolling for the entire school year
for elementary and secondary
courses, and for the entire semester
for collegiate courses. A student who
transfers or otherwise withdraws, in
writing, within two weeks after the
beginning of classes and who has
already paid the pertinent tuition and entire period he is expected to
other school fees in full or for any complete his course without
length of time longer than one month prejudice to his right to transfer.
may be charged ten per cent of the
total amount due for the term if he
withdraws within the first week of
This "presumption" has been
classes, or twenty per cent if within
translated into a right in Batas
the second week of classes,
Pambansa Blg. 232, the "Education
regardless of whether or not he has
Act of 1982." Section 9 of this act
actually attended classes. The
provides:
student may be charged all the
school fees in full if he withdraws
anytime after the second week of
classes. However, if the transfer or Sec. 9. Rights of Students in School.
withdrawal is due to a justifiable — In addition to other rights, and
reason, the student shall be charged subject to the limitations prescribed
the pertinent fees only up to and by law and regulations, students and
including the last month of pupils in all schools shall enjoy the
attendance. following rights:
Clearly, in no way may Paragraph xxx xxx xxx
137 be construed to mean that the
student shall be enrolled for only one
semester, and that after that semester
is over his re-enrollment is 2. The right to freely choose
their field of study subject to existing
dependent solely on the sound
curricula and to continue their course
discretion of the school. On the
therein up to graduation, except in
contrary, the Manual recognizes the
cases of academic deficiency, or
right of the student to be enrolled in
violation of disciplinary regulations.
his course for the entire period he is
expected to complete it. Thus,
Paragraph 107 states:
xxx xxx xxx
Every student has the right to enrol
in any school, college or university 5. Academic Freedom Not a
upon meeting its specific Ground for Denying Students'
requirement and reasonable Rights.
regulation: Provided, that except in
the case of academic delinquency
and violation of disciplinary
Respondent judge, in his order dated
regulation, the student is presumed to
February 24, 1989, stated that
be qualified for enrolment for the
85
"respondent Mabini College is free
to admit or not admit the petitioners
for re-enrollment in view of the
academic freedom enjoyed by the
school" [Rollo, p. 16]. To support
this conclusion, he cited the cases of
Garcia v. The Faculty Admission
Committee, Loyola School of
Theology, G.R. No. L-40779,
November 28, 1975, 68 SCRA 277,
and Tangonan v. Pano, G.R. No. L-
45157, June 27, 1985, 137 SCRA
245, where the Court emphasized the
institutions' discretion on the
admission and enrollment of students
as a major component of the
academic freedom guaranteed to
institutions of higher learning.
These cases involve different facts
and issues. In Garcia, the issue was
whether a female lay student has a
clear legal right to compel a
seminary for the priesthood to admit
her for theological studies leading to
a degree. In Tangonan, the issue was
whether a nursing student, who was
admitted on probation and who has
failed in her nursing subjects, may
compel her school to readmit her for
enrollment.
Moreover, respondent judge loses
sight of the Court's unequivocal
statement in Villar that the right of
an institution of higher learning to
set academic standards cannot be
utilized to discriminate against
students who exercise their
constitutional rights to speech and
assembly, for otherwise there win be
a violation of their right to equal
protection [At p. 711]
6. Capitol Medical Center
and Licup.
In support of the action taken by
respondent judge, private
respondents cite the recent cases of
Capitol Medical Center, Inc. v. Court
of Appeals, G.R. No. 82499, October
13, 1989, and Licup v. University of
San Carlos, G.R. No. 85839, October
19, 1989, both decided by the First
Division of the Court.
We find the issues raised and
resolved in these two decisions
dissimilar from the issues in the
present case.
In Capitol Medical Center, the Court
upheld the decision of the school
authorities to close down the school
because of problems emanating from
a labor dispute between the school
and its faculty. The Court ruled that
the students had no clear legal right
to demand the reopening of the
school.
On the other hand, in Licup the issue
resolved was whether or not the
students were afforded procedural
due process before disciplinary
action was taken against them. Thus,
the Court stated:
The Court finds no cogent basis for
the protestations of petitioners that
they were deprived of due process of
law and that the investigation
conducted was far from impartial
and fair. On the contrary, what
appear from the record is that the
charges against petitioners were
adequately established in an
appropriate investigation. The
imputation of bias and partiality is
not supported by the record. . . .
Moreover, Licup, far from adopting
the "termination of contract" theory
in Alcuaz, impliedly rejected it, to
wit:
While it is true that the students are
entitled to the right to pursue their
education, the USC as an educational
institution is also entitled to pursue
its academic freedom and in the
process has the concommitant right
to see to it that this freedom is not
jeopardized.
True, an institution of learning has a
contractual obligation to afford its
students a fair opportunity to
complete the course they seek to
pursue. However, when a student
commits a serious breach of
discipline or fails to maintain the
required academic standard, he
forfeits his contractual right; and the
court should not review the
discretion of university authorities.
(Emphasis supplied.)
7. The Instant Case.
To justify the school's action,
respondents, in their Comment dated
November 12, 1989, quoting from
their answer filed in the trial court,
allege that of the thirteen (13)
petitioners eight (8) have incurred
failing grades, to wit:
a) Ariel Non has not only
failed in four (4) subjects but also
failed to cause the submission of
Form 137 which is a pre-requisite to
his re- enrollment and to his
continuing as a student of Mabini;
b) Rex Magana not only has
failed in one (1) subject but also has
incomplete grades in four (4)
subjects as well as no grades in two
(2) subjects;
c) Elvin Agura failed in two
(2) subjects and has three (3)
incomplete grades;
d) Emmanuel Barba has
failed in one (1) subject, and has to
still take CMT 1 1 to 22. He is
already enrolled at Ago Foundation;
86
e) Joselito Villalon has
incomplete grades in nine (9)
subjects;
f) Luis Santos has failed in
one (1) subject;
g) George Dayaon has failed
in four (4) subjects and has to
remove the incomplete grade in one
(1) subject;
h) Daniel Torres has failed in
five (5) subjects, has to remove
incomplete grades in five (5) more
objects and has no grade in one (1)
subject. [Rollo, p. 79.]
Petitioners have not denied this, but
have countered this allegation as
follows:
xxx xxx xxx
(11) Petitioners were and are
prepared to show, among others,
that:
a) Three of the 13 of them
were graduating. (Admitted in the
Answer.)
b) Their academic
deficiencies, if any, do not warrant
non- readmission. (The Answer
indicates only 8 of the 13 as with
deficiencies.)
c) Their breach of discipline,
if any, was not serious.
d) The improper conduct
attributed to them was during the
exercise of the cognate rights of free
speech and peaceable assembly,
particularly a February 1988 student
rally. (The crux of the matter, as
shown even in the Answer.)
e) There was no due
investigation that could serve as
basis for disciplinary action. (In
effect, admitted in the Answer; even
Alcuaz required due process.)
f) Respondents admit
students with worse deficiencies — a
clear case of discrimination against
petitioners for their role in the
student rally. (An equal protection
question.)
g) Respondent school is their
choice institution near their places of
residence which they can afford to
pay for tertiary education, of which
they have already lost one-and-a-half
school-years — in itself punishment
enough. [Rollo, p. 86].
Clearly, the five (5) students who did
not incur failing marks, namely,
Normandy Occiano, Lourdes
Banares, Bartolome Ibasco, Sonny
Moreno and Giovani Palma, were
refused re-enrollment without just
cause and, hence, should be allowed
to re-enroll.
On the other hand, it does not appear
that the petitioners were afforded due
process, in the manner expressed in
Guzman, before they were refused
re-enrollment. In fact, it would
appear from the pleadings that the
decision to refuse them re-enrollment
because of failing grades was a mere
afterthought. It is not denied that
what incurred the ire of the school
authorities was the student mass
actions conducted in February 1988
and which were led and/or
participated in by petitioners.
Certainly, excluding students
because of failing grades when the
cause for the action taken against
them undeniably related to possible
breaches of discipline not only is a
denial of due process but also
constitutes a violation of the basic
tenets of fair play.
Moreover, of the eight (8) students
with failing grades, some have only
one or two failures, namely, Rex
Magana, Elvin Agura, Emmanuel
Barba, and Luis Santos. Certainly,
their failures cannot be considered
marked academic deficiency within
the context of the Court's decision in
Villar.
Then, as to the students who incurred
several failing grades, namely, Ariel
Non, Joselito Villalon, George
(Jorge) Dayaon, and Daniel Torres, it
is not clear from respondents'
enumeration whether the failures
were incurred in only one semester
or through the course of several
semesters of study in the school.
Neither are the academic standards
of respondent school, from which we
can gauge whether or not these
students are academically deficient,
alleged by respondents. Thus, while
the prerogative of schools to set
academic standards is recognized,
we cannot affirm respondent school's
action as to petitioners Non,
Villalon, Dayaon and Torres because
of insufficient information.
With regard to petitioner Emmanuel
Barba who respondents claim has
enrolled in Ago Foundation, such
fact alone, if true, will not bar him
from seeking readmission in
respondent school.
However, these should not be taken
to mean that no disciplinary action
could have been taken against
petitioners for breach of discipline if
the facts had so warranted. In line
with the Court's ruling in Malabanan,
petitioners could have been subjected
to disciplinary proceedings in
connection with the February 1988
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mass actions. But the penalty that
could have been imposed must be
commensurate to the offense
committed and, as set forth in
Guzman, it must be imposed only
after the requirements of procedural
due process have been complied
with. This is explicit from the
Manual of Regulations for Private
Schools, which provides in
Paragraph 145 that "[n]o penalty
shall be imposed upon any student,
except for cause as defined in this
Manual and/or in the school's rules
and regulations duly promulgated
and only after due investigation shall
have been conducted."
WHEREFORE, the petition is
GRANTED. The orders of
respondent judge dated August 8,
1988 and February 24, 1989 are
hereby ANNULLED. Respondent
Mabini College is ORDERED to
readmit and to allow the re-
enrollment of petitioners, if they are
still so minded, without prejudice to
its taking the appropriate action as to
petitioners Ariel Non, Joselito
Villalon, George (Jorge) Dayaon and
Daniel Torres, if it is shown by their
records (Form 137) that they have
failed to satisfy the school's
prescribed academic standards.

But this matter of disciplinary

proceedings and the imposition of SO ORDERED.
administrative sanctions have
become moot and academic.
Petitioners, who have been refused
readmission or re-enrollment and
who have been effectively excluded
from respondent school for four (4)
semesters, have already been more
than sufficiently penalized for any
breach of discipline they might have
committed when they led and
participated in the mass actions that,
according to respondents, resulted in
the disruption of classes. To still
subject them to disciplinary
proceedings would serve no useful
purpose and would only further
aggravate the strained relations
between petitioners and the officials
of respondent school which
necessarily resulted from the heated
legal battle here, in the Court of
Appeals and before the trial court.

88