CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila,. vs. HON. PERFECTO A.S.

LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION, Respondents. I know only that what is moral is what you feel good after and what is immoral is what you feel bad after. Ernest Hermingway Death in the Afternoon, Ch. 1 It is a moral and political axiom that any dishonorable act, if performed by oneself, is less immoral than if performed by someone else, who would be well-intentioned in his dishonesty. J. Christopher Gerald Bonaparte in Egypt, Ch. I The Court's commitment to the protection of morals is secondary to its fealty to the fundamental law of the land. It is foremost a guardian of the Constitution but not the conscience of individuals. And if it need be, the Court will not hesitate to "make the hammer fall, and heavily" in the words of Justice Laurel, and uphold the constitutional guarantees when faced with laws that, though not lacking in zeal to promote morality, nevertheless fail to pass the test of constitutionality. The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure seeking the reversal of the Decision2 in Civil Case No. 93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower court),3 is the validity of Ordinance No. 7783 (the Ordinance) of the City of Manila.4 The antecedents are as follows: Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of operating hotels, motels, hostels and lodging houses.5 It built and opened Victoria Court in Malate which was licensed as a motel although duly accredited with the Department of Tourism as a hotel.6 On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order7 (RTC Petition) with the lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional.8 Enacted by the City Council9 on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993, the saidOrdinance is entitled AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITAMALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.10 The Ordinance is reproduced in full, hereunder: SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person, partnership, corporation or entity shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or authorized to contract and engage in, any business providing certain forms of amusement, entertainment, services and facilities where women are used as tools in entertainment and which tend to disturb the

community, annoy the inhabitants, and adversely affect the social and moral welfare of the community, such as but not limited to: 1. Sauna Parlors 2. Massage Parlors 3. Karaoke Bars 4. Beerhouses 5. Night Clubs 6. Day Clubs 7. Super Clubs 8. Discotheques 9. Cabarets 10. Dance Halls 11. Motels 12. Inns SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are prohibited from issuing permits, temporary or otherwise, or from granting licenses and accepting payments for the operation of business enumerated in the preceding section. SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses enumerated in Section 1 hereof are hereby given three (3) months from the date of approval of this ordinance within which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area, such as but not limited to: 1. Curio or antique shop 2. Souvenir Shops 3. Handicrafts display centers 4. Art galleries 5. Records and music shops 6. Restaurants 7. Coffee shops 8. Flower shops 9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family entertainment that cater to both local and foreign clientele. 10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows, stage and theatrical plays, art exhibitions, concerts and the like. 11. Businesses allowable within the law and medium intensity districts as provided for in the zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock or yard, motor repair shop, gasoline service station, light industry with any machinery, or funeral establishments. SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be punished by imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court, PROVIDED, that in case of juridical person, the President, the General Manager, or person-in-charge of operation shall be liable thereof; PROVIDED FURTHER, that in case of subsequent violation and conviction, the premises of the erring establishment shall be closed and padlocked permanently. SEC. 5. This ordinance shall take effect upon approval. Enacted by the City Council of Manila at its regular session today, March 9, 1993. Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)

In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its enumeration of prohibited establishments, motels and inns such as MTDC's Victoria Court considering that these were not establishments for "amusement" or "entertainment" and they were not "services or facilities for entertainment," nor did they use women as "tools for entertainment," and neither did they "disturb the community," "annoy the inhabitants" or "adversely affect the social and moral welfare of the community."11 MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons: (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv)12 of the Local Government Code of 1991 (the Code) grants to the City Council only the power to regulate the establishment, operation and maintenance of hotels, motels, inns, pension houses, lodging houses and other similar establishments; (2) The Ordinance is void as it is violative of Presidential Decree (P.D.) No. 49913 which specifically declared portions of the Ermita-Malate area as a commercial zone with certain restrictions; (3) The Ordinance does not constitute a proper exercise of police power as the compulsory closure of the motel business has no reasonable relation to the legitimate municipal interests sought to be protected; (4) The Ordinance constitutes an ex post facto law by punishing the operation of Victoria Court which was a legitimate business prior to its enactment; (5) The Ordinanceviolates MTDC's constitutional rights in that: (a) it is confiscatory and constitutes an invasion of plaintiff's property rights; (b) the City Council has no power to find as a fact that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists for prohibiting the operation of motels and inns, but not pension houses, hotels, lodging houses or other similar establishments, and for prohibiting said business in the Ermita-Malate area but not outside of this area.14 In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained that the City Council had the power to "prohibit certain forms of entertainment in order to protect the social and moral welfare of the community" as provided for in Section 458 (a) 4 (vii) of the Local Government Code,16 which reads, thus: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: .... (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: .... (vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants, or require the suspension or suppression of the same; or, prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community. Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation spoken of in the above-quoted provision included the power to control, to govern and to restrain places of exhibition and amusement.18

Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to protect the social and moral welfare of the community in conjunction with its police power as found in Article III, Section 18(kk) of Republic Act No. 409,19 otherwise known as the Revised Charter of the City of Manila (Revised Charter of Manila)20 which reads, thus: ARTICLE III THE MUNICIPAL BOARD . . . Section 18. Legislative powers. The Municipal Board shall have the following legislative powers: . . . (kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months' imprisonment, or both such fine and imprisonment, for a single offense. Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private respondent had the burden to prove its illegality or unconstitutionality.21 Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a commercial zone.22 The Ordinance, the petitioners likewise claimed, cannot be assailed as ex post facto as it was prospective in operation.23 The Ordinance also did not infringe the equal protection clause and cannot be denounced as class legislation as there existed substantial and real differences between the ErmitaMalate area and other places in the City of Manila.24 On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte temporary restraining order against the enforcement of the Ordinance.25 And on 16 July 1993, again in an intrepid gesture, he granted the writ of preliminary injunction prayed for by MTDC.26 After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the petitioners from implementing the Ordinance. The dispositive portion of said Decision reads:27 WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of the City of Manila null and void, and making permanent the writ of preliminary injunction that had been issued by this Court against the defendant. No costs. SO ORDERED.28 Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994, manifesting that they are elevating the case to this Court under then Rule 42 on pure questions of law.30 On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred in holding that the questioned Ordinancecontravenes P.D. 49931 which allows operators of all kinds of commercial establishments, except those specified therein; and (3) It erred in declaring the Ordinance void and unconstitutional.32 In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions they made before the lower court. They contend that the assailed Ordinance was enacted in the exercise of the inherent and plenary power of the State and the general welfare clause exercised by local government units provided for

in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code.34 They allege that theOrdinance is a valid exercise of police power; it does not contravene P.D. 499; and that it enjoys the presumption of validity.35 In its Memorandum36 dated 27 May 1996, private respondent maintains that the Ordinance is ultra vires and that it is void for being repugnant to the general law. It reiterates that the questioned Ordinance is not a valid exercise of police power; that it is violative of due process, confiscatory and amounts to an arbitrary interference with its lawful business; that it is violative of the equal protection clause; and that it confers on petitioner City Mayor or any officer unregulated discretion in the execution of the Ordinance absent rules to guide and control his actions. This is an opportune time to express the Court's deep sentiment and tenderness for the Ermita-Malate area being its home for several decades. A long-time resident, the Court witnessed the area's many turn of events. It relished its glory days and endured its days of infamy. Much as the Court harks back to the resplendent era of the Old Manila and yearns to restore its lost grandeur, it believes that the Ordinance is not the fitting means to that end. The Court is of the opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and therefore null and void. The Ordinance is so replete with constitutional infirmities that almost every sentence thereof violates a constitutional provision. The prohibitions and sanctions therein transgress the cardinal rights of persons enshrined by the Constitution. The Court is called upon to shelter these rights from attempts at rendering them worthless. The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and must be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.37 Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution and to the laws.38 The Ordinance must satisfy two requirements: it must pass muster under the test of constitutionality and the test of consistency with the prevailing laws. That ordinances should be constitutional uphold the principle of the supremacy of the Constitution. The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power, a delegation of legislative power from the national legislature. The delegate cannot be superior to the principal or exercise powers higher than those of the latter.39 This relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. The national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.40 The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City Council acting as agent of Congress. Local government units, as agencies of the State, are endowed with police power in order to effectively accomplish and carry out the declared objects of their creation.41 This delegated police power is found in Section 16 of the Code, known as the general welfare clause, viz: SECTION 16. General Welfare.Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the

development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. Local government units exercise police power through their respective legislative bodies; in this case, thesangguniang panlungsod or the city council. The Code empowers the legislative bodies to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the province/city/municipality and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the province/city/ municipality provided under the Code.42 The inquiry in this Petition is concerned with the validity of the exercise of such delegated power. The Ordinance contravenes the Constitution The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional limitations thereon; and is subject to the limitation that its exercise must be reasonable and for the public good.43In the case at bar, the enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws. The relevant constitutional provisions are the following: SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.44 SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.45 SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of laws.46 Sec. 9. Private property shall not be taken for public use without just compensation.47 A. The Ordinance infringes the Due Process Clause The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be deprived of life, liberty or property without due process of law. . . ."48 There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. This standard is aptly described as a responsiveness to the supremacy of reason, obedience to the dictates of justice,49 and as such it is a limitation upon the exercise of the police power.50 The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and property of individuals; to secure the individual from the arbitrary exercise of the powers of the government, unrestrained by the established principles of private rights and distributive justice; to protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of judicial procedure; and to secure to all persons equal and impartial justice and the benefit of the general law.51

The guaranty serves as a protection against arbitrary regulation, and private corporations and partnerships are "persons" within the scope of the guaranty insofar as their property is concerned.52 This clause has been interpreted as imposing two separate limits on government, usually called "procedural due process" and "substantive due process." Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action.53 Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a person's life, liberty, or property. In other words, substantive due process looks to whether there is a sufficient justification for the government's action.54 Case law in the United States (U.S.) tells us that whether there is such a justification depends very much on the level of scrutiny used.55 For example, if a law is in an area where only rational basis review is applied, substantive due process is met so long as the law is rationally related to a legitimate government purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights, then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose.56 The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law. Such power cannot be exercised whimsically, arbitrarily or despotically57 as its exercise is subject to a qualification, limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it bears emphasis, may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare.58 Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty and property.59 Requisites for the valid exercise of Police Power are not met To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.60 It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.61 Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into private rights62 a violation of the due process clause. The Ordinance was enacted to address and arrest the social ills purportedly spawned by the establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila63 had already taken judicial notice of the "alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrill-seekers."64

The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City Council's police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive. It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable regulations looking to the promotion of the moral and social values of the community. However, the worthy aim of fostering public morals and the eradication of the community's social ills can be achieved through means less restrictive of private rights; it can be attained by reasonable restrictions rather than by an absolute prohibition. The closing down and transfer of businesses or their conversion into businesses "allowed" under the Ordinance have no reasonable relation to the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments will notper se protect and promote the social and moral welfare of the community; it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila. Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and establishments of the like which the City Council may lawfully prohibit,65 it is baseless and insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is not warranted under the accepted definitions of these terms. The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the community. That these are used as arenas to consummate illicit sexual affairs and as venues to further the illegal prostitution is of no moment. We lay stress on the acrid truth that sexual immorality, being a human frailty, may take place in the most innocent of places that it may even take place in the substitute establishments enumerated under Section 3 of the Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote instance that an immoral sexual act transpires in a church cloister or a court chamber, we would behold the spectacle of the City of Manila ordering the closure of the church or court concerned. Every house, building, park, curb, street or even vehicles for that matter will not be exempt from the prohibition. Simply because there are no "pure" places where there are impure men. Indeed, even the Scripture and the Tradition of Christians churches continually recall the presence and universality of sin in man's history.66 The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said to be injurious to the health or comfort of the community and which in itself is amoral, but the deplorable human activity that may occur within its premises. While a motel may be used as a venue for immoral sexual activity, it cannot for that reason alone be punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a naked assumption. If that were so and if that were allowed, then the Ermita-Malate area would not only be purged of its supposed social ills, it would be extinguished of its soul as well as every human activity, reprehensible or not, in its every nook and cranny would be laid bare to the estimation of the authorities. The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as the Ordinancemay to shape morality, it should not foster the illusion that it can make a moral man out of it because immorality is not a thing, a building or establishment; it is in the hearts of men. The City Council instead should regulate human conduct that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums and blessings of democracy. While petitioners' earnestness at curbing clearly objectionable social ills is commendable, they unwittingly punish even the proprietors and operators of "wholesome," "innocent" establishments. In the instant case, there is a clear invasion of personal or property rights, personal in the case of those individuals desirous of owning, operating and patronizing those motels and property in terms of the investments made and the salaries to be paid to those therein employed. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of their licenses or permits; it may exercise its

authority to suspend or revoke their licenses for these violations;67 and it may even impose increased license fees. In other words, there are other means to reasonably accomplish the desired end. Means employed are constitutionally infirm The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which "to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area." Further, it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the "premises of the erring establishment shall be closed and padlocked permanently." It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a person's fundamental right to liberty and property. Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare."68 In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.69 The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify the meaning of "liberty." It said: While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognizedas essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. In another case, it also confirmed that liberty protected by the due process clause includes personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, the U.S. Supreme Court explained: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood where they formed under compulsion of the State.71 Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of the Ordinancemay seek autonomy for these purposes. Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motel's premisesbe it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution.72 Adults have

a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons. The liberty protected by the Constitution allows persons the right to make this choice.73 Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception. Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is the beginning of all freedomit is the most comprehensive of rights and the right most valued by civilized men.74 The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. As the case of Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly stated: Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any real sense free. Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions into the personal life of the citizen.76 There is a great temptation to have an extended discussion on these civil liberties but the Court chooses to exercise restraint and restrict itself to the issues presented when it should. The previous pronouncements of the Court are not to be interpreted as a license for adults to engage in criminal conduct. The reprehensibility of such conduct is not diminished. The Court only reaffirms and guarantees their right to make this choice. Should they be prosecuted for their illegal conduct, they should suffer the consequences of the choice they have made. That, ultimately, is their choice. Modality employed is unlawful taking In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property.77 The Ordinance in Section 1 thereof forbids the running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation.78 It is intrusive and violative of the private property rights of individuals. The Constitution expressly provides in Article III, Section 9, that "private property shall not be taken for public use without just compensation." The provision is the most important protection of property rights in the Constitution. This is a restriction on the general power of the government to take property. The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about loss spreading. If the government takes away a person's property to benefit society, then society should pay. The principal purpose of the guarantee is "to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.79 There are two different types of taking that can be identified. A "possessory" taking occurs when the government confiscates or physically occupies property. A "regulatory" taking occurs when the government's regulation leaves no reasonable economically viable use of the property.80

In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also could be found if government regulation of the use of property went "too far." When regulation reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to support the act. While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.82 No formula or rule can be devised to answer the questions of what is too far and when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of degree and therefore cannot be disposed of by general propositions." On many other occasions as well, the U.S. Supreme Court has said that the issue of when regulation constitutes a taking is a matter of considering the facts in each case. The Court asks whether justice and fairness require that the economic loss caused by public action must be compensated by the government and thus borne by the public as a whole, or whether the loss should remain concentrated on those few persons subject to the public action.83 What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use.84A regulation that permanently denies all economically beneficial or productive use of land is, from the owner's point of view, equivalent to a "taking" unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable.85 When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.86 A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action. These inquiries are informed by the purpose of the takings clause which is to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.87 A restriction on use of property may also constitute a "taking" if not reasonably necessary to the effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct investmentbacked expectations of the owner.88 The Ordinance gives the owners and operators of the "prohibited" establishments three (3) months from its approval within which to "wind up business operations or to transfer to any place outside of the ErmitaMalate area or convert said businesses to other kinds of business allowable within the area." The directive to "wind up business operations" amounts to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory. Unless the owner converts his establishment to accommodate an "allowed" business, the structure which housed the previous business will be left empty and gathering dust. Suppose he transfers it to another area, he will likewise leave the entire establishment idle. Consideration must be given to the substantial amount of money invested to build the edifices which the owner reasonably expects to be returned within a period of time. It is apparent that the Ordinance leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. The second and third options to transfer to any place outside of the Ermita-Malate area or to convert into allowed businessesare confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in Section 4 of the Ordinance is also equivalent to a "taking" of private property. The second option instructs the owners to abandon their property and build another one outside the Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with an additional burden imposed on the owner to build another establishment solely from his coffers. The proffered solution does not put an end to the "problem," it merely relocates it. Not only is this impractical, it is

unreasonable, onerous and oppressive. The conversion into allowed enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant or a coffee shop, art gallery or music lounge without essentially destroying its property? This is a taking of private property without due process of law, nay, even without compensation. The penalty of closure likewise constitutes unlawful taking that should be compensated by the government. The burden on the owner to convert or transfer his business, otherwise it will be closed permanently after a subsequent violation should be borne by the public as this end benefits them as a whole. Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid exercise of police power, which limits a "wholesome" property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation. Private property which is not noxious nor intended for noxious purposes may not, by zoning, be destroyed without compensation. Such principle finds no support in the principles of justice as we know them. The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking. Distinction should be made between destruction from necessity and eminent domain. It needs restating that the property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore "wholesome."89 If it be of public benefit that a "wholesome" property remain unused or relegated to a particular purpose, then certainly the public should bear the cost of reasonable compensation for the condemnation of private property for public use.90 Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no way controls or guides the discretion vested in them. It provides no definition of the establishments covered by it and it fails to set forth the conditions when the establishments come within its ambit of prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted power to close down establishments. Ordinances such as this, which make possible abuses in its execution, depending upon no conditions or qualifications whatsoever other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be tested, are unreasonable and invalid. The Ordinance should have established a rule by which its impartial enforcement could be secured.91 Ordinances placing restrictions upon the lawful use of property must, in order to be valid and constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law enforcers in carrying out its provisions.92 Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S. Supreme Court struck down an ordinance that had made it illegal for "three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying to persons passing by." The ordinance was nullified as it imposed no standard at all "because one may never know in advance what 'annoys some people but does not annoy others.' " Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend to disturb the community," "annoy the inhabitants," and "adversely affect the social and moral welfare of the community." The cited case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law enforcers in carrying out its provisions. Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process clause. These lawful establishments may be regulated, but not prevented from carrying on their business. This is a sweeping exercise of police power that is a result of a lack of imagination on the part of the City Council and which amounts to an interference into personal and private rights which the Court will not countenance. In this regard, we take a resolute stand to uphold the constitutional guarantee of the right to liberty and property.

Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry from the illconsidered Ordinance enacted by the City Council. In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive ordinance regulating "sexually oriented businesses," which are defined to include adult arcades, bookstores, video stores, cabarets, motels, and theaters as well as escort agencies, nude model studio and sexual encounter centers. Among other things, the ordinance required that such businesses be licensed. A group of motel owners were among the three groups of businesses that filed separate suits challenging the ordinance. The motel owners asserted that the city violated the due process clause by failing to produce adequate support for its supposition that renting room for fewer than ten (10) hours resulted in increased crime and other secondary effects. They likewise argued than the ten (10)-hour limitation on the rental of motel rooms placed an unconstitutional burden on the right to freedom of association. Anent the first contention, the U.S. Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered, was adequate to support the city's determination that motels permitting room rentals for fewer than ten (10 ) hours should be included within the licensing scheme. As regards the second point, the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs. The ordinance challenged in the above-cited case merely regulated the targeted businesses. It imposed reasonable restrictions; hence, its validity was upheld. The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,96 it needs pointing out, is also different from this case in that what was involved therein was a measure which regulated the mode in which motels may conduct business in order to put an end to practices which could encourage vice and immorality. Necessarily, there was no valid objection on due process or equal protection grounds as the ordinance did not prohibit motels. The Ordinance in this case however is not a regulatory measure but is an exercise of an assumed power to prohibit.97 The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, even under the guise of exercising police power, be upheld as valid. B. The Ordinance violates Equal Protection Clause Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others.98 The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances.99 The "equal protection of the laws is a pledge of the protection of equal laws."100 It limits governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their property is concerned.101 The Court has explained the scope of the equal protection clause in this wise: What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: "The ideal situation is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity, which is of the very essence of the idea of law." There is recognition, however, in the opinion that what in fact exists "cannot approximate the ideal. Nor is the law susceptible to the reproach that it does not take into account the realities of the situation. The constitutional guarantee then is not to be given a meaning that disregards what is, what does in fact exist. To assure that the general welfare be promoted, which is the end of law, a regulatory

measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason." Classification is thus not ruled out, it being sufficient to quote from the Tuason decision anew "that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest.102 Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause.103 The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements: 1) It must be based on substantial distinctions. 2) It must be germane to the purposes of the law. 3) It must not be limited to existing conditions only. 4) It must apply equally to all members of the class.104 In the Court's view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance. The Court likewise cannot see the logic for prohibiting the business and operation of motels in the ErmitaMalate area but not outside of this area. A noxious establishment does not become any less noxious if located outside the area. The standard "where women are used as tools for entertainment" is also discriminatory as prostitutionone of the hinted ills the Ordinance aims to banishis not a profession exclusive to women. Both men and women have an equal propensity to engage in prostitution. It is not any less grave a sin when men engage in it. And why would the assumption that there is an ongoing immoral activity apply only when women are employed and be inapposite when men are in harness? This discrimination based on gender violates equal protection as it is not substantially related to important government objectives.105 Thus, the discrimination is invalid. Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency with prevailing laws. C. The Ordinance is repugnant to general laws; it is ultra vires The Ordinance is in contravention of the Code as the latter merely empowers local government units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof. The power of the City Council to regulate by ordinances the establishment, operation, and maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv), which provides that:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: . . . (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: . . . (iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides and transports . . . . While its power to regulate the establishment, operation and maintenance of any entertainment or amusement facilities, and to prohibit certain forms of amusement or entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as follows: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: . . . (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: . . . (vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants, or require the suspension or suppression of the same; or, prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community. Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, the only power of the City Council to legislate relative thereto is to regulate them to promote the general welfare. The Code still withholds from cities the power to suppress and prohibit altogether the establishment, operation and maintenance of such establishments. It is well to recall the rulings of the Court inKwong Sing v. City of Manila106 that: The word "regulate," as used in subsection (l), section 2444 of the Administrative Code, means and includes the power to control, to govern, and to restrain; but "regulate" should not be construed as synonymous with "suppress" or "prohibit." Consequently, under the power to regulate laundries, the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised.107

And in People v. Esguerra,108 wherein the Court nullified an ordinance of the Municipality of Tacloban which prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is empowered only to regulate the same and not prohibit. The Court therein declared that: (A)s a general rule when a municipal corporation is specifically given authority or power to regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld.109 These doctrines still hold contrary to petitioners' assertion110 that they were modified by the Code vesting upon City Councils prohibitory powers. Similarly, the City Council exercises regulatory powers over public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement as found in the first clause of Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend "such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants" and to "prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community" are stated in the second and third clauses, respectively of the same Section. The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph.111 These powers, therefore, should not be confused, commingled or consolidated as to create a conglomerated and unified power of regulation, suppression and prohibition.112 The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among "other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants" or "certain forms of amusement or entertainment" which the City Council may suspend, suppress or prohibit. The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof, said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council.113 Moreover, it is a general rule in statutory construction that the express mention of one person, thing, or consequence is tantamount to an express exclusion of all others. Expressio unius est exclusio alterium. This maxim is based upon the rules of logic and the natural workings of human mind. It is particularly applicable in the construction of such statutes as create new rights or remedies, impose penalties or punishments, or otherwise come under the rule of strict construction.114 The argument that the City Council is empowered to enact the Ordinance by virtue of the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without merit. On the first point, the ruling of the Court in People v. Esguerra,115 is instructive. It held that: The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the Revised Administrative Code, refers to matters not covered by the other provisions of the same Code, and therefore it can not be applied to intoxicating liquors, for the power to regulate the selling, giving away and dispensing thereof is granted specifically by section 2242 (g) to municipal councils. To hold that, under the general power granted by section 2238, a municipal council may enact the ordinance in question, notwithstanding the provision of section 2242 (g), would be to make the latter superfluous and nugatory, because the power to prohibit, includes the power to regulate, the selling, giving away and dispensing of intoxicating liquors.

On the second point, it suffices to say that the Code being a later expression of the legislative will must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative will.116 If there is an inconsistency or repugnance between two statutes, both relating to the same subject matter, which cannot be removed by any fair and reasonable method of interpretation, it is the latest expression of the legislative will which must prevail and override the earlier.117 Implied repeals are those which take place when a subsequently enacted law contains provisions contrary to those of an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes: those which occur where an act is so inconsistent or irreconcilable with an existing prior act that only one of the two can remain in force and those which occur when an act covers the whole subject of an earlier act and is intended to be a substitute therefor. The validity of such a repeal is sustained on the ground that the latest expression of the legislative will should prevail.118 In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly." Thus, submitting to petitioners' interpretation that the Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the Charter stating such must be considered repealed by the Code as it is at variance with the latter's provisions granting the City Council mere regulatory powers. It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It can not be said that motels are injurious to the rights of property, health or comfort of the community. It is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its summary abatement without judicial intervention.119 Notably, the City Council was conferred powers to prevent and prohibit certain activities and establishments in another section of the Code which is reproduced as follows: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall: . . . (v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of houses of ill repute, gambling and other prohibited games of chance, fraudulent devices and ways to obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of obscene or pornographic materials or publications, and such other activities inimical to the welfare and morals of the inhabitants of the city; . . .

If it were the intention of Congress to confer upon the City Council the power to prohibit the establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms by adding them to the list of the matters it may prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump these establishments with houses of ill-repute and expand the City Council's powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that these establishments may only be regulated in their establishment, operation and maintenance. It is important to distinguish the punishable activities from the establishments themselves. That these establishments are recognized legitimate enterprises can be gleaned from another Section of the Code. Section 131 under the Title on Local Government Taxation expressly mentioned proprietors or operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the "contractors" defined in paragraph (h) thereof. The same Section also defined "amusement" as a "pleasurable diversion and entertainment," "synonymous to relaxation, avocation, pastime or fun;" and "amusement places" to include "theaters, cinemas, concert halls, circuses and other places of amusement where one seeks admission to entertain oneself by seeing or viewing the show or performances." Thus, it can be inferred that the Code considers these establishments as legitimate enterprises and activities. It is well to recall the maxim reddendo singula singulis which means that words in different parts of a statute must be referred to their appropriate connection, giving to each in its place, its proper force and effect, and, if possible, rendering none of them useless or superfluous, even if strict grammatical construction demands otherwise. Likewise, where words under consideration appear in different sections or are widely dispersed throughout an act the same principle applies.120 Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or open storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be within the powers of the council to enact but the same must not be in conflict with or repugnant to the general law.121 As succinctly illustrated in Solicitor General v. Metropolitan Manila Authority:122 The requirement that the enactment must not violate existing law explains itself. Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national legislature (except only that the power to create their own sources of revenue and to levy taxes is conferred by the Constitution itself). They are mere agents vested with what is called the power of subordinate legislation. As delegates of the Congress, the local government units cannot contravene but must obey at all times the will of their principal. In the case before us, the enactment in question, which are merely local in origin cannot prevail against the decree, which has the force and effect of a statute.123 Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the rule, it has already been held that although the presumption is always in favor of the validity or reasonableness of the ordinance, such presumption must nevertheless be set aside when the invalidity or unreasonableness appears on the face of the ordinance itself or is established by proper evidence. The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common right.124 Conclusion All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that abuses may attend the

enforcement of its sanctions. And not to be forgotten, the City Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void. Concededly, the challenged Ordinance was enacted with the best of motives and shares the concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power legislation of such character deserves the full endorsement of the judiciary we reiterate our support for it. But inspite of its virtuous aims, the enactment of the Ordinance has no statutory or constitutional authority to stand on. Local legislative bodies, in this case, the City Council, cannot prohibit the operation of the enumerated establishments under Section 1 thereof or order their transfer or conversion without infringing the constitutional guarantees of due process and equal protection of laws not even under the guise of police power. WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring the Ordinance void is AFFIRMED. Costs against petitioners. SO ORDERED. LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents. Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders. Specifically, the publication of the following presidential issuances is sought: a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847. b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878879, 881, 882, 939-940, 964,997,1149-1178,1180-1278. c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65. d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 16941695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 18351836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 21472161, 2163-2244. e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123. g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439. The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote: SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant. Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course. The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431]. Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said: We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error' No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code: Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ... The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect. Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows: Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ... The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready access to the legislative records no such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication. The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. 6 It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7: In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents. The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit: The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified." From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. InPesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately. WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. SO ORDERED. FILEMON DAVID, petitioner, vs. HON. GREGORIO U. AQUILIZAN, FELOMENO JUGAR and RICARDO JUGAR, respondents. Arturo P. Aponesto for petitioner. Dominador Mortera for private respondents. Petition for certiorari with prayer for a writ of preliminary injunction filed November 27, 1978 to set aside the decision dated September 29, 1978 of the Court of Agrarian Relations (CAR), 16th Regional District, Branch II at Cotabato City, presided by Judge Gregorio U. Aquilizan. 1 We resolved on April 10, 1979, finding the verified petition sufficient in form and substance, to require respondents to answer, not to move to dismiss. 2 On June 9, 1979, respondent Judge after an extension of 20 days, filed an answer. 3 Private respondents did not answer notwithstanding due and proper notice. 4 The factual and procedural antecedents which gave rise to this petition follow. Earlier or on February 17, 1976, the herein private respondents, Felomeno and Ricardo Jugar brothers, filed against Felimon C. David, herein petitioner, a "Petition for Reinstatement" in the CAR, 15th Regional District, Branch II, Cotabato City. They alleged, inter alia, that sometime in 1971, they were installed as share tenants by petitioner over separate portions of the latter's landholding situated at Polomolok, South Cotabato, each portion having a seeding capacity of two (2) hectares, more or less, their sharing agreement being 50-50% of the net produce; that the parcels they were cultivating are devoted to the production of corn crops, the produce per hectare being 60 to 70 cavans in corn cobs; that sometime in the middle part of 1973, private respondents were no longer allowed to continue their cultivation of the subject lots as petitionerlandholder prohibited them from doing so and took possession of said lots for no reason at all; that the Department of Agrarian Reform (DAR) Team Office at General Santos intervened for the immediate reinstatement of private respondents to their respective portions, but such intervention was to no avail as petitioner-landholder refused and still refuses to reinstate them, and that because of such unlawful act, private respondents suffered and will continue to suffer damages and litigation expenses. 5

In herein petitioner's answer, as respondent below, he denied that herein private respondents were his tenants. He claimed that "... Ricardo David (should be Jugar) who was then the tractor driver of respondent (now petitioner herein) was given additional incentive to work on a one hectare portion of respondent's land which he surrendered after resigning as tractor driver and after he worked with the Dolefil and as a farm tenant of his father; Felomeno Jugar truly worked with the respondent (herein petitioner) on share basis until the petitioner Felomeno Jugar (now private respondent) sold his working animals and resumed his faith-healing and later worked, as in fact to the present is working, with his father ..." 6 He further averred that the average harvest per hectare is not only 60 to 70 sacks of corn on cobs but if properly cultivated the land would easily yield no less than 120 sacks of corn on cobs at 4 cans each sack; that the truth is that private respondents voluntarily surrendered their landholdings as follows: "...Ricardo, in September, 1972, after he resigned as tractor driver of respondent (now petitioner), due to ill health; and later on as farm tenant of his father; Felomeno Jugar voluntarily surrendered his landholdings after he sold his working animals, and later, he continued his religious faith healing occupation and as farm tenant of his father." 7 As affirmative defense, petitioner alleged that private respondents lodged their petition with the DAR, now Ministry of Agrarian Reform (MAR), and after a thorough investigation, the Hearing Officer of said Department, Guillermo Tanawit, rendered a Report (DAR ARDO # 11-38-000, Koronadal, South Cotabato) on April 12, 1976 containing the following findings and recommendation, to wit: There was no dispute that Ricardo was installed on a 1.0 hectare land, so also there was no dispute that Felomeno Jugar was installed on 2.0 hectare land. The allegation however, that both were "illegally ejected" is belied by the admission in their position paper termed as memorandum that the landowner ONLY BORROWED their land for a short period to time, Noted with all aspect that Ricardo even employed himself with the DOLE which only but confirm the stand of voluntary surrender by his landlord. Not only that he even worked on his father's land He claimed that he resigned as a tractor driver because he was sick and then later claimed that he was reinstalled on another 2.0 hectare augmenting his 1.0 hectare into 2.0 hectare as claimed. But the fact remain thereafter he relinquished his fights thereat because of sickness and work on his father's land. So also with his brother Felomeno Jugar he claimed that his lot of 2.0 hectare was only borrowed by his landlord the latter part of 1975 because of their (David) debt with the bank, and work with his father. Taken as a whole, there could not be unlawful ejectment contrary to PD No. 316 dated October 26, 1973, because during that particular time, Ricardo is either working with the Dole, supplemented by his farming with his father and Felomeno Jugar with his laymen (religious) activities supplemented with his farming with his father's land. The above foregoing, the undersigned observation (sic), when the conducted this hearing, can not but penned this dictum that there was no unlawful ejectment but indeed petitioners had summarily surrendered their landholdings separately, on their own will and without any duress (unlawful), Accordingly, for want of merit, the case is hereby dropped from the undersigned roster of legal (mediation) case. 8 (Emphasis supplied.) On June 29, 1978, after the issues were joined, the respondent Judge issued an order directing the Department (now Ministry) of Agrarian Reform "... to cover the land in area under operation Land Transfer (sic) ..." This order is worded as follows. When CAR Case No. 43-South Cot. '76 was called, plaintiffs and counsel appeared as well as the defendant and counsels.

In view of the recent ruling of the Court of Appeals with respect to land devoted primarily to rice and/or corn and as of October 21, 1972, said land is automatically covered by operation Land Transfer. WHEREFORE, in view of the revelation gathered in open court, the Department of Agrarian Reform is hereby directed to cover the land in area under operation Land Transfer. 9 Three months later, or on September 29, 1979, respondent Judge without conducting any hearing rendered judgment for private respondents and against herein petitioner finding that "...plaintiffs Ricardo and Felomeno, both surnamed Jugar (now private respondents) were tenants of defendant Filemon C. David (petitioner herein) at the time PD 27 was promulgated on October 21, 1972," 10 and thereafter declared them "owners" thereof. Thus WHEREFORE, premises considered judgment is rendered: 1. Plaintiffs (private respondents herein) are hereby 'deemed owners' of the land they were cultivating when P.D. 27 was decreed; 2. The Ministry of Agrarian Reform is hereby directed to cover the land point of controversy under Operation Land Transfer; 3. Directing the the provincial Commander, Philippine Constabular of South Cotabato to install peacefully plaintiffs to the land covered by operations land 'Transfer after the Ministry of Agrarian Reform shall have Identified and sketched them, in conformity with the DND/DAR Memorandum Agreement of September 18, 1975. 4. Let a copy of this Decision be furnished the Hon. Secretary, Ministry of Agrarian Reform for his guidance and easy reference for similar case. No pronouncement as to cost or damages. 11 On the bases of the foregoing tactual and procedural antecedent petitioners seek to annul and set aside the aforesaid order and decision of respondent Judge Aquilizan on the grounds that: (a) he was denied due process of law; (b) the respondent Judge has no jurisdiction over the instant case, jurisdiction being legally lodged with the Ministry of Agrarian Reform: (c) assuming respondent Judge has jurisdiction thereof, the order of June 29, 1978 has already become final and no new decision novating the same may be rendered; and (d) the findings of facts, arrived at without hearing, are contrary to the evidence (sic). 12 In his Answer, respondent Judge Aquilizan did not deny the lack of hearings alleged in the petition, but interposed the defense that the subject decision has already become "... final and executory after the lapse of the period for the perfection of an appeal ..." and "... there is no showing that an appeal was brought to the Appellate Court in accordance with provisions of PD 946 and the Uniform Rules of Procedure of the Court of Agrarian Relations." 13That instead, the respondent (should be petitioner) filed the instant "Certiorari with Preliminary Injunction' to review the "Decisions of the Honorable Court of Agrarian Relations dated September 29, 1978", and "...that certiorari cannot be substituted for an appeal ..." 14 On June 22, 1979, We considered the case submitted for decision. This petition is quite obviously invested with merit. In the light of the foregoing factual. and procedural milieu and since, admittedly, respondent judge did not conduct any hearing in the case prior to issuance of the challenged decision, the ineluctible conclusion is that the challenged decision is null and void for want of due process. The following requisites, as set forth in a leading case before the 1935 Constitution took effect, must concur for procedural due process in civil cases: "(1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired

over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard;and (4) judgment must be rendered upon lawful hearing." 15 Thus, it is well-settled rule that "no one shall be personally bound until he has had a day in court", by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity lacks all the attributes of a judicial determination; it is a judicial usurpation and oppression, and can never be upheld where justice is justly administered. (Ong Su Han vs. Gutierrez David, 76 Phil. 546, etc.; Moran Comments on the Rules of Court, Vol. 1, 1957 ed., p. 476). And it has been held that a final and executory judgment may be set aside with a view to the renewal of the litigation when the judgment is void for lack of due process of law. (Moran, Comments on the Rules of Court, supra, p. 523; Banco Espaol-Filipino vs. Palanca, 37 Phil. 921 ). 16 Being null and void from its inception, the decision sought to be set aside does not exist in the eyes of the law because it is "as though it had not been done. 17 In legal contemplation, it is no judgment at all. 18 "By it, no rights are divested. From it, no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. ..." 19 It may be attacked directly or collaterally, and the action therefor may be brought even after the time for appeal or review has lapsed. The judgment is vulnerable to attack even when no appeal has. 20 Hence, such judgment does not become final in sense of depriving a party of his right to question its validity. 21 WHEREFORE, petition is GRANTED and the challenged order and decision are hereby SET ASIDE. Respondent judge is hereby directed to conduct appropriate proceedings in the case. This decision is immediately executory. No costs. SO ORDERED. CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner, vs. COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents. Ronolfo S. Pasamba for petitioner. PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following resolutions of the Commission on Elections: Resolution No. 2327 dated 26 December 1991 for being unconstitutional, and Resolution No. 92-0829 dated 6 April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want of legal and factual bases. The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11 May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No. 2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing, carrying and transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or police organizations, and organization or maintenance of reaction forces during the election period. 1Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327 providing for the summary disqualification of candidates engaged in gunrunning, using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints. 2 On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan requesting the return of the two (2) firearms 3 issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle Verde and return them to Congress. Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police (PNP) headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some twenty (20) meters away from its entrance. About thirty minutes later, the policemen manning the outpost flagged down the car driven by Arellano as it approached the checkpoint. They searched the car and found

the firearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by petitioner to get the firearms from the house and return them to Sergeant-at-Arms Taccad of the House of Representatives. Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The referral did not include petitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation meritorious. 4 On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances mentioned in Arellano's sworn explanation. Petitioner not only appeared at the preliminary investigation to confirm Arellano's statement but also wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact was complying with it when apprehended by returning the firearms to Congress; and, that he was petitioner's driver, not a security officer nor a bodyguard. 5 On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters, recommended that the case against Arellano be dismissed and that the "unofficial" charge against petitioner be also dismissed. 6 Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166; 7 and petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sec. 32, 33 and 35 of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881. 8 On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative proceedings as well as the filing of the information in court. 9 On 23 April 1992, the COMELEC denied petitioner's motion for reconsideration. 10 Hence, this recourse. Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and regulations of an administrative body must respect the limits defined by law; that the Omnibus Election Code provides for the disqualification of any person/candidate from running for or holding a public office, i.e., any person who has either been declared by competent authority as insane or incompetent or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude; that gunrunning, using or transporting firearms or similar weapons and other acts mentioned in the resolution are not within the letter or spirit of the provisions of the Code; that the resolution did away with the requirement of final conviction before the commission of certain offenses; that instead, it created a presumption of guilt as a candidate may be disqualified from office in situations (a) where the criminal charge is still pending, (b) where there is no pending criminal case, and (c) where the accused has already been acquitted, all contrary to the requisite quantum of proof for one to be disqualified from running or holding public office under the Omnibus Election Code, i.e., proof beyond reasonable doubt. As a result, petitioner concludes, Resolution No. 2327 violates the fundamental law thus rendering it fatally defective. But, the issue on the disqualification of petitioner from running in the 11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress in the elections that ensued. Consequently, it is now futile to discuss the implications of the charge against him on his qualification to run for public office. However, there still remains an important question to be resolved, i.e., whether he can be validly prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of Representatives the two firearms issued to him on the basis of the evidence gathered from the warrantless search of his car.

Petitioner strongly protests against the manner by which the PNP conducted the search. According to him, without a warrant and without informing the driver of his fundamental rights the policemen searched his car. The firearms were not tucked in the waist nor within the immediate reach of Arellano but were neatly packed in their gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search of his car that yielded the evidence for the prosecution was clearly violative of Secs. 2 and 3, par. (2), Art. III, of the Constitution. 11 Petitioner further maintains that he was neither impleaded as party respondent in the preliminary investigation before the Office of the City Prosecutor nor included in the charge sheet. Consequently, making him a respondent in the criminal information would violate his constitutional right to due process. Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate for public office during the election period from employing or availing himself or engaging the services of security personnel or bodyguards since, admittedly, Arellano was not a security officer or bodyguard but a civilian employee assigned to him as driver by the House of Representatives. Specifically, petitioner further argues, Arellano was instructed to return to Congress, as he did, the firearms in compliance with the directive of its Sergeant-at-Arms pursuant to the "Gun Ban," thus, no law was in fact violated. 12 On 25 June 1992, we required COMELEC to file its own comment on the petition 13 upon manifestation of the Solicitor General that it could not take the position of COMELEC and prayed instead to be excused from filing the required comment. 14 COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec. 263, of B.P. Blg. 881 which provides that "the principals, accomplices and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses." It points out that it was upon petitioner's instruction that Arellano brought the firearms in question outside petitioner's residence, submitting that his right to be heard was not violated as he was invited by the City Prosecutor to explain the circumstances regarding Arellano's possession of the firearms. Petitioner also filed a sworn written explanation about the incident. Finally, COMELEC claims that violation of the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15 Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No. 2327 since this petition may be resolved without passing upon this particular issue. 16 As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of moving vehicles and the seizure of evidence in plain view, 17 as well as the search conducted at police or military checkpoints which we declared are not illegal per se, and stressed that the warrantless search is not violative of the Constitution for as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely limited to a visual search. 18 Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that they were neatly packed in gun cases and placed inside a bag at the back of the car. Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which the package was bundled led the PNP to suspect that it contained firearms. There was no mention either of any report regarding any nervous, suspicious or unnatural reaction from Arellano when the car was stopped and searched. Given these circumstances and relying on its visual observation, the PNP could not thoroughly search the car lawfully as well as the package without violating the constitutional injunction. An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched. 19 The existence of probable cause justifying the warrantless search is determined by the facts of each case. 20 Thus, we upheld the validity of the warrantless search in situations where the smell of

marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. 21 We also recognize the stop-and-search without warrant conducted by police officers on the basis of prior confidential information which were reasonably corroborated by other attendant matters, e.g., where a confidential report that a sizeable volume of marijuana would be transported along the route where the search was conducted and appellants were caught in flagrante delicto transporting drugs at the time of their arrest; 22 where apart from the intelligence information, there were reports by an undercover "deep penetration" agent that appellants were bringing prohibited drugs into the country; 23 where the information that a Caucasian coming from Sagada bringing prohibited drugs was strengthened by the conspicuous bulge in accused's waistline, and his suspicious failure to produce his passport and other identification papers; 24 where the physical appearance of the accused fitted the description given in the confidential information about a woman transporting marijuana; 25 where the accused carrying a bulging black leather bag were suspiciously quiet and nervous when queried about its contents; 26 or where the identity of the drug courier was already established by police authorities who received confidential information about the probable arrival of accused on board one of the vessels arriving in Dumaguete City. 27 In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to the Batasan Complex to enforce Resolution No. 2327. There was no evidence to show that the policemen were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen. Absent such justifying circumstances specifically pointing to the culpability of petitioner and Arellano, the search could not be valid. The action then of the policemen unreasonably intruded into petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of petitioner's right against warrantless search cannot be admitted for any purpose in any proceeding. It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms. While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines shall be made to ensure that no infringement of civil and political rights results from the implementation of this authority," and that "the places and manner of setting up of checkpoints shall be determined in consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution No. 2323." 28 The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of impending checkpoints without necessarily giving their locations, and the reason for the same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs informing the public of the purpose of its operation. As a result, motorists passing that place did not have any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist and to conduct an extensive search of his vehicle. In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen (14) armed policemen conducting the operation, 29 driver Arellano being alone and a mere employee of petitioner could not have marshalled the strength and the courage to protest against the extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty.

Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due process clause of the Constitution. The facts show that petitioner was not among those charged by the PNP with violation of the Omnibus Election Code. Nor was he subjected by the City Prosecutor to a preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the petitioner that he was a respondent in the preliminary investigation is violative of due process which requires that the procedure established by law should be obeyed. 30 COMELEC argues that petitioner was given the change to be heard because he was invited to enlighten the City Prosecutor regarding the circumstances leading to the arrest of his driver, and that petitioner in fact submitted a sworn letter of explanation regarding the incident. This does not satisfy the requirement of due process the essence of which is the reasonable opportunity to be heard and to submit any evidence one may have in support of his defense. 31 Due process guarantees the observance of both substantive and procedural rights, whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. 32 In Go v. Court of Appeals, 33 we held that While the right to preliminary investigation is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to 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 . . . . [T]he right to an opportunity to avoid a process painful to anyone save, perhaps, to hardened criminals is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. Apparently, petitioner was merely invited during the preliminary investigation of Arellano to corroborate the latter's explanation. Petitioner then was made to believe that he was not a party respondent in the case, so that his written explanation on the incident was only intended to exculpate Arellano, not petitioner himself. Hence, it cannot be seriously contended that petitioner was fully given the opportunity to meet the accusation against him as he was not apprised that he was himself a respondent when he appeared before the City Prosecutor. Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with COMELEC cannot be considered as a waiver of his claim to a separate preliminary investigation for himself. The motion itself expresses petitioner's vigorous insistence on his right. Petitioner's protestation started as soon as he learned of his inclusion in the charge, and did not ease up even after COMELEC's denial of his motion for reconsideration. This is understandably so since the prohibition against carrying firearms bears the penalty of imprisonment of not less than one (1) year nor more than six (6) years without probation and with disqualification from holding public office, and deprivation of the right to suffrage. Against such strong stance, petitioner clearly did not waive his right to a preliminary investigation. WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine National Police on 13 January 1992 is declared illegal and the firearms seized during the warrantless search cannot be used as evidence in any proceeding against petitioner. Consequently, COMELEC Resolution No. 92-0829 dated 6 April 1992 being violative of the Constitution is SET ASIDE. The temporary restraining order we issued on 5 May 1992 is made permanent. SO ORDERED.

ODELON T. BUSCAINO, petitioner, vs. COMMISSION ON AUDIT, respondent. This is a petition for certiorari assailing the decision of the Commission on Audit (COA) which adjudged petitioner Odelon T. Buscaino jointly and solidarily liable with the President of Polytechnic University of the Philippines (PUP), Dr. Pablo Mateo, and other PUP officials and employees in the amount of P1,527,176.40 for audit officials and employees in the amount of P1,527,176.40 for audit disallowances based on the schedule of disallowances submitted by the resident COA Auditor of the Polytechnic University of the Philippines.1wphi1.nt The facts of the case that matter are as follows: Petitioner Odelon T. Buscaino is the Director of Fiscal Management Services of the Polytechnic University of the Philippines (PUP) with position item of Chief Financial Management Officer II. His functions include signing disbursement vouchers and certifying the availability of funds and legality and propriety of supporting documents. As such, petitioner is one of the necessary PUP official signatories to every disbursement voucher of PUP before payment thereon can be made. Petitioner is also a member of the PUP Canvass and Award Committee which reports the results of every bid or canvass conducted and at the same time, recommends to the PUP President the award of purchase or service contract to a supplier. Ireneo Monteverde, former Auditor of PUP, issued four (4) Certificates of Settlement and Balances (CSBs) No. 86-003-151, 86-004-151, 86-007-151, and 86-008-151, dated May 23, July 28, November 12, and December 15, 1986, respectively, disallowing in audit an aggregate amount of P993,933.32, involving overpriced purchases of various office and school supplies in violation of pertinent laws, applicable rules and regulations. A motion for reconsideration of the aforestated disallowances was interposed by former PUP President Dr. Pablo Mateo and the herein petitioner, Odelon Buscaino. On March 3, 1989, the Commission on Audit (COA) came out with its Decision No. 826, affirming subject disallowances ordered by the PUP Auditor on the ground that there was "no public bidding and/or canvass resulting in overpricing" in the purchase of the various office and school supplies in question and holding petitioner jointly and severally liable with Dr. Pablo Mateo, and Dr. Juan E. Manuel, Jr., former President and Vice-President of PUP, respectively, for the said disallowances. In a letter, dated August 2, 1989, addressed to then Commission on Audit Chairman Eufemio Domingo, petitioner sought reconsideration of Decision No. 826 on the following grounds: a. Based on existing documents, there was evident suppression of vital information which if made known to the authorities concerned, may have rendered a contrary decision; and b. The existing conditions and circumstances, at the time when some of the purchase were made, have not been given due consideration in post auditing the vouchers for the payment thereof. During the pendency of the motion for reconsideration, former Auditor Ireneo Monteverde was succeeded by Auditor Federico Calpotura. After a reevaluation of the disallowances with respect to subject transactions, the motion for reconsideration was denied in COA Decision No. 1508 dated September 20, 1990. The aforesaid decision likewise increased the amount of disallowances from P993,933.32 to P2,379,304.98 and the corresponding Certificates of Settlement and Balances (CSBs) from four (4) to sixteen (16). As a result, petitioner is being held jointly and solidarily liable for the following transactions:

Check No. CBS No. 86-007-151 1. TW-8,05,333,824

Nature of Transaction

Amount Disallowed

Reason for Disallowance

Purchase of school and supplies

P206,534.15

Aside from being signatory to Box No. 4 of the voucher, Mr. Buscaino is a signatory to the Abstract of Bids as member of the Canvass and Award Committee, which certified that the prices are fair and the lowest, and recommended the award to the Supplier. - do -

2. TW 8-05-333-823 CSB No. 86-008-151 3. TW 8,05,333,876 4. SNB-3873896-1 5. SNB-3873960-2 6. SNB-3874005-5 CBS No. 87-002-151 7. SNB-3874216-6

- do -

68,125.00

- do - do Purchase of 6 drums Hy-tox Purchase of 500 boxes of chalk

58,294.00 42,038.50 10,800.00 6,925.00

- do - do - do - do -

Purchase of 1,000 rolls typewriter ribbons

14,250.00

Signatory only to the Abstract of Bids, as member of the Canvass and Award Committee which certified that the prices are fair and the lowest, and recommended the award to the supplier - do - do -

8. SNB-3874214-4 9. SNB-387435-4

- do Purchase of school and office supplies

14,250.00 31,550.00

CSB NO. 87-004-151 10. SNB-3874384-6 11. TW-B 05,466,446 12. TW-B 05,466,445 CSB No. 87-005-151 13. TW-B, 05,509-319 14. SN6-1968866-1 - do - do 14,344.00 29,100.00 - do - do - do - do - do 24,121.00 216,289.50 62,573.00 - do - do - do -

15. TW-B, 05,509,321 16. TW-B, 05,509,320 17. TW-B, 05,509,323 18. TW-B, 05,509,322 19. SN6-1968869-4 20. SN6-1968879-0

- do - do - do - do - do Purchase of 6 drums of Hy-tox chlorine

12,773.00 36,567.70 124,971.75 55,098.50 15,949.80 10,770.00

- do - do - do - do - do - do -

CBS No. 87-017-101 21. TW-B, 05,204,044 Purchase of 125 units of Manual Typewriter 50,800.00 Short delivery by four (4) units. Mr. Buscaino is the signatory to Box 4 of the voucher certified that the transaction was supported by documents appearing legal and proper. The voucher was supported by only one (1) Sales Invoice bearing only 121 serial nos. and no other proof of additional delivery.

CBS No. 86-002-151 22. SN5-7567061-6 Payment of housing allowance for Feb. 1986 to former PUP Pres. P 500.00 Mr. Buscaino is the signatory to Box 4 of the voucher, certified that the transaction was supported by documents appearing legal and proper. The voucher is not supported by any document.

CSB No. 86-003-151 23. SN5-7580362-0

do -

500.00

- do -

Mar. 1985 CSB No. 86-004-151 24. SN5-7580561

do -

500.00

- do -

April, 1985 CSB No. 86-005-151 25. SN5-7580726

do -

500.00

- do -

May 1985 CSB No. 86-006-151

26. SN5-7580937-1

do -

500.00

- do -

June 1985 CSB No. 86-003-151 27. SNB-3873861-1

do -

500.00

- do -

July, 1985 CBS No. 86-008-151 28. SNB-3874007-0

do -

500.00

- do -

August, 1985 CBS No. 86-004-151 29. SN5-7580508-6 Payment of gasoline and toll gate fees 302.00 - do -

CSB No. 86-004-151 30. SN5-7580551-0 Purchase of 249 supplies 249.00 Mr. Buscaino is the signatory to Box 4 of the voucher. The supplies were delivered in advance (on Mar 8/85) w/o canvasses nor Purchase Order. The confirmation of the delivery was on Mar. 20, 1985.

CBS No. 86-008-101 31. TW-B-05-333-932 Payment of ITT Telephone System to Asia Pacific Phil., Inc. 405,5000.00 Mr. Buscaino is the signatory to Box 4 of the voucher. Per CSB issued by the former Auditor. There was no refund in 1985 for the purpose. The transaction was paid out of the revalidated CDCs of prior year's accounts payable obligated in 1983 in favor of various creditors other than supplier, hence, violation of Sec. 43, P.D. 1177. Mr. Buscaino is the signatory to Box 4 of the voucher, certifying that the transaction was supported by documents appearing legal and proper. The transaction was not supported by any canvass nor Purchase Order. It was an advanced delivery confirmed only later.

32. SN5-7580495-0

Purchase of school and office supplies

12,000.00

The pertinent portion of COA Decision No. 1508 reads: . . . In sum, these disallowances are the result of overpricing of school and office supplies procured without canvassing or bidding in the aggregate amount of P1,948,455.33; unnecessary procurement of telephone system; short delivery of four (4) units of typewriter at a total cost of P50,800.00; unauthorized collection of allowances; and expenditures for health, transportation, and gasoline for unofficial purposes. The aforecited decision included Mr. Jaime Dolor, Mr. Juan del Rosario and Mr. Adolfo Aquino as additional persons jointly and severally liable with the petitioner and the other PUP officials. Again, petitioner presented a motion for reconsideration of the above decision, alleging among others, that: a. Petitioner Buscaino had signed Box No. 4 of the Disbursement Vouchers (Form No. 5A, Rev. 1981) in his capacity as Chief of Accounting Office whose only concern was to type figures and computations and to check if all documents required for the transactions are attached and has nothing to do with overpricing; and b. Petitioner, as a public official, properly and regularly discharged his duties, or performed the acts in accordance with law and regulations for the signature to the vouchers, and that he did not do any act contrary to his official duty or omit to do anything which such a duty may require. Petitioner contends that as Chief Accounting Officer, (a) the nature of the design of the Disbursement Vouchers he signed precludes petitioner from liability in the disallowances; (b) the purchases and prices were legal and regular; (c) petitioner had no reason to believe that the acts of his superior are not regular; and (d) petitioner acted with extraordinary care and in utmost good faith. On August 19, 1991, petitioner wrote to Auditor Federico Calpotura requesting that he be furnished with documents and informations needed for his defense, that would exclude him from liability, including the following: a. Quotations of prices of every item re-canvassed by then COA Auditor Monteverde, indicating the brand and/or quality of the items; b. Names and addresses of suppliers/persons/entities where the items were re-canvassed; c. Date when items were re-canvassed; and d. Certified copies of official forms in the re-canvass of the items Auditor Calpotura responded to the request of petitioner in the negative, stating that: No such documents as you indicated above were turned over to the undersigned. However, the manner and basis of the disallowances were explained (and) noted in each disallowed transaction in every CSB issued by then Auditor Monteverde. Petitioner's follow-up elicited a similar response:

I can understand your plight of course but I can't produce what I don't produce what I don't have. Please see the individual CSB which you have already obtained from this Office where I relayed (sic) upon, since said document are official. Thereafter, petitioner wrote to the then Commission on Audit Chairman Domingo questioning the propriety and validity of the new CSBs issued by Auditor Calpotura on September 27 and 28, 1989, increasing the disallowances to P2,379,304.98. On April 12, 1993, the COA rendered Decision No. 2826, disposing thus: After a circumspect evaluation of the facts of the case and a scrutiny of the accompanying documents, this Commission finds merit in the recommendation of the new PUP Auditor to exclude Mr. Buscaino from the list of persons held liable for the above-enumerated transactions which were partly disallowed on the ground of overpricing. The excessiveness of the purchase prices in those transactions is outside the ambit of responsibility of Mr. Buscaino who signed the corresponding vouchers only in his capacity as an accounting officer. xxx xxx xxx However, for the rest of the transactions in question, it was clearly established that Mr. Buscaino either signed the subject documents as an accounting official or as a member of the Canvass and Awards Committee that recommended the award of the corresponding contracts to the suppliers or both accounting official and member of such committee. . . . Premises considered, this Committee hereby excludes Mr. Buscaino from the list of persons liable for the audit disallowances amounting to P428,678.12 made on the eight (8) abovementioned transactions. However, he shall remain jointly and severally liable with the other PUP officials and employees for the rest of the transactions described in the schedule of disallowances submitted by the PUP Auditor amounting to P1,527,176.40. Unable to obtain complete affirmative relief from respondent COA, petitioner found his way to this Court via the petition for certiorari under consideration. The sole issue posed for resolution here is whether or not the Commission on Audit committed grave abuse of discretion amounting to lack or excess jurisdiction in holding petitioner jointly and solidarily liable with the other PUP officials and employees for reimbursement of subject audit disallowances. Before delving into the merits of the case, the timeliness of the petition must first be looked into and passed upon. Respondent maintains that the petition must be denied on the ground of late filing; pointing out that on July 15, 1993, when the petitioner presented his motion for extension of time for the filing of a petition for review of COA Decision No. 2826, almost two months had already lapsed from the time of receipt of subject decision on May 30, 1993 and not on June 15, 1993, as theorized upon by petitioner. It is also claimed that on August 2, 1989, when petitioner filed a motion for reconsideration of COA Decision No. 2826, dated July 24, 1989, the eight (8) days that had lapsed must be deducted from the mandatory period of thirty days for filing a petition for certiorari. It is then submitted that the petitioner had only twenty-two days left, from May 30, 1993, within which to bring his petition. Petitioner, on the other hand, insisted that he received a copy of COA Decision No. 2826 on June 15, 1993, such that when he prayed for an extension of time within which to file his petition, on July 15, 1993, the said motion was seasonably presented within the thirty-day period.

At the outset, it must be stressed that the COA Decision petitioner appeals from is COA Decision No. 2826 dated April 12, 1993, the last decision of the Commission on Audit on the matter. Consequently, the thirty day period for filing a petition for certiorari should be reckoned from the date subject decision was received by the petitioner. Our pivot of inquiry therefore is the true date petitioner received COA Decision No. 2826. As evinced by the allegations of the parties, the issue at bar is factual in nature. Normally, this Court does not rule on a question of fact. However, since the factual issue aforestated is relevant to the resolution of the issue of timeliness of filing of the petition, the Court may rule on this question.1wphi1.nt Respondent contends that subject decision was received by petitioner, through his secretary, on May 30, 1993. On the other hand, it is petitioner's submission that he received such decision on June 15, 1993, when a copy thereof was sent to his residence by PUP President Zenaida Olonan as he was then on official sick leave from PUP. Petitioner's allegation that he received the decision only on June 15, 1993 finds support in the evidence that he was, in fact, on official sick leave from PUP, as shown by Annex "A" a medical certificate from Lyceum Northwestern General Hospital in Dagupan City stating that petitioner was under the hospital's medical care, Annex "A-1" petitioner's approved application for leave from PUP for the period April 12 to May 31, 1993 and Annex "A-2" petitioner's approved application for leave for the period June 1-30, 1993. It is thus understandable that petitioner received subject decision by registered mail on June 15, 1993 and his motion for extension of time sent in on July 15, 1993 was filed on the thirtieth day, within the 30-day reglementary period. Assuming arguendo that the thirty days for filing a petition for certiorari had already lapsed, this Court may still allow and, in fact, has allowed some meritorious cases to proceed despite the procedural defect or lapse; in keeping with the principle that rules of procedure are mere tools designed to facilitate the attainment of justice and that strict and rigid application of rules which would result in technicalities that tend to frustrate rather than promote substantial justice must always be avoided. 1 Going into the merits of the case, the Court finds that the Commission on Audit acted with grave abuse of discretion in handing down its assailed decision. The various disbursements upon which petitioner's liability is based have not been indubitably established as patently invalid or irregular and the disallowances ordered by COA were not substantiated by sufficient evidence on record. To begin with, as regards the items disallowed on the ground of overpricing, petitioner was adjudged liable therefor because he was a member of the Canvass and Award Committee which was tasked to certify that the prices submitted were the lowest and which recommended the award to the supplier. The disallowances were made on the basis of respondent's allegation or theory that the school and other office supplies may be bought from other suppliers at prices much lower than those of the supplier to whom the bid was awarded. In order to find out how the COA reached such a conclusion, petitioner asked the COA to furnish him with the necessary information and/or documents that would indicate the large disparity in the prices such as the quotation of prices of every item re-canvassed by the resident auditor, reflecting the brand or quality of the items, the names and addresses of the suppliers where the items were re-canvassed and the date subject items were re-canvassed. Respondent COA, however, did not furnish the same on the two occasions that the said request was made. Without the necessary information and/or documents, it baffles the Court how COA could have arrived at the conclusion that there were cases of overpricing. And without the needed information and/or documents, the petitioner was not afforded the opportunity to refute the disallowances, item by item, and to justify the legality of the purchases involved. As argued by the petitioner, How can the undersigned (petitioner) determine the difference in prices and per cent increases between the then procurement officer's canvassed prices and the then COA

Auditor's re-canvassed prices and possibly justify item by item the legality of the purchase when as you said "no such document as you indicated above were turned-over to the undersigned (present PUP COA Auditor)"? The purchase orders contain several items and it is important that those items which were allegedly overpriced should be identified. The requirements of due process of law mandate that every accused or respondent be apprised of the nature and cause of the charge against him, and the evidence in support thereof be shown or made available to him so that he can meet the charge with traversing or exculpatory evidence. COA's failure to furnish or show to the petitioner the inculpatory documents or records of purchases and price levels constituted a denial of due process which is a valid defense against the accusation. Absent any evidence documentary or testimonial to prove the same, the charge of COA against the herein petitioner must fail for want of any leg to stand on. In the 1991 decision in the case of Virgilio C. Arriola and Julian Fernandez vs. Commission on Audit and Board of Liquidators, 2 rendered on September 30, 1991, which was reiterated in the case of National Center for Mental Health Management vs. Commission on Audit on December 6, 1996, 3 this Court succinctly held that mere allegations of overpricing are not, . . . in the absence of the actual canvass sheets and/or price quotations from identified suppliers, a valid basis for outright disallowance of agency disbursements/cost estimates for government projects. A more humane procedure, and totally conformable to the due process clause, is for the COA representative to allow the members of the Contracts Committee mandatory access to the COA source documents/canvass sheets. Besides, this gesture would have been in keeping with COA's own Audit Circular No. 85-55-A par. 2.6, that: . . . As regards excessive expenditures, they shall be determined by place and origin of goods, volume or quantity of purchase, warranties/quality, special features of units purchased service and the like . . . By having access to source documents, petitioners could then satisfy themselves that COA guidelines/rules on excessive expenditures had been observed. The transparency would also erase any suspicion that the rules had been utilized to terrorize and/or work injustice, instead of ensuring a "working partnership" between COA and the government agency, for the conservation and protection of government funds, which is the main rationale for COA audit. xxx xxx xxx We agree with petitioners that COA's disallowance was not sufficiently supported by evidence, as it was premised purely on undocumented claims, as in fact petitioners were denied access to the actual canvass sheets or price quotations from accredited suppliers. . . . xxx xxx xxx It was incumbent upon the COA to prove that its standards were met in its audit disallowance. The records do not show that such was done in this case. . . . absent due process and evidence to support COA's disallowance, COA's ruling on petitioner's liability has no basis. Indeed, without the evidence upon which the charge of overpricing is anchored, apart from being a denial of due process, it would not be possible to attach liability to petitioner.

As regards the disallowance of the PUP President's monthly housing allowance of P500.00, COA contends that subject disbursement was disallowed for "lack of legal basis". However, the petitioner herein has pointed out the proper basis for such housing allowance. Evidence on record includes a copy of the resolution of the PUP Board of Trustees, Resolution No. 1445 dated February 4, 1977, authorizing the grant of commutable housing allowance to the head of the College and a certification from the PUP Cashier attesting to the payment of similar monthly housing allowance to past Presidents of the institution (PUP). The said Resolution of the Board of Trustees of PUP authorizing a housing allowance was a sufficient basis for the disbursement. As the Solicitor General stated in his Comment, it is beyond petitioner's competence to pass upon the validity of such board resolution, his duty with respect thereto being purely ministerial. Petitioner could not have questioned the grant of housing allowance as his task was just to certify that the disbursement was properly supported by the Resolution of the PUP Board of Trustees. It was an error for respondent COA to hold him liable in connection with subject disbursement. Anent the charge of short delivery of four units of typewriter, respondent COA held petitioner accountable for the four undelivered typewriters for the reason that the disbursement voucher bears his certification that the purchase was duly supported by the requisite documents although the delivery of the 125 total units purchased was short of four units. However, pertinent records indicate that the four typewriters in question were delivered on January 6, 1984 under Delivery Receipt No. 155526 with the notation "To complete delivery per MN # 68446 (Sales Invoice)". Sales Invoice 68466 is the original receipt for the 125 units of typewriter purchased. But as explained by petitioner, upon delivery of the 125 typewriters he ordered the return of the four units which were defective, such that the four units involved were covered by a different delivery receipt. The fact of delivery thereof is also evidenced by a gate pass, dated January 6, 1984, containing a list of the items that were transported on said date, including the four units of typewriter bearing serial numbers 32209353, 32209340, 32209864 and 32109158, respectively. The same was likewise certified to by PUP Property Inspector Juan del Rosario under his Management Inspection Report dated March 19, 1984 and by Property Officer Adolfo Aquino under the corresponding Memorandum Receipt of March 20, 1984. The existence of the missing typewriters is also borne out by a certification dated September 3, 1993 of PUP Internal Auditor Sylvia A. Sarmiento to the effect that two Triumph typewriters with serial numbers 32209353 and 32209340 have been located at Rooms W306 and E311 and their physical existence verified. So also, with respect to the emergency purchase and advance delivery of supplies disallowed by COA for lack of supporting canvass and purchase order, it appears that subject purchases were upon the orders of PUP President Pablo Mateo who was authorized to determine and decide on emergency purchases. The determination of whether certain supplies were urgently needed was the prerogative of the PUP President. Whenever he certified to the necessity of disbursement for emergency procurements, petitioner was not in any position to question the wisdom of such decision of the PUP President. Respondent contends that under COA Circular 78-84, emergency purchases can only be made (1) whenever the supplies, materials and equipment are exceptionally urgent or absolutely indispensable to prevent immediate danger to, or loss of, life and/or property and (2) whenever the supplies are to be used in connection with a project or activity which can not be delayed without causing detriment to public service; and that the petitioner did not show that the emergency purchases in question were proper. Again, it was an error for COA to rule that petitioner had the burden of showing that the said purchases were exceptionally urgent or absolutely indispensable to prevent immediate danger to, or loss of, life and/or property or were to be used in connection with the project or activity which could not be delayed without jeopardizing public service. The PUP president is the one authorized to act on and determine the necessity of such procurement. The circular cited by respondent COA requires, among others, a "certificate by the head of the agency or his duly authorized representative as to the necessity and justification for the emergency purchase". The head of the agency referred to is no other than the PUP president. As accounting

officer, petitioner's duty was merely to sign the vouchers for the disbursement of the funds therefor. And because the purchases were exceptionally urgent, the usual canvass procedure was not resorted to. With regard to the payment of ITT telephone system to Asia Pacific Philippines, Inc., respondent also erred in adjudging petitioner liable for certifying that an allotment thereof was approved and available when in fact there was no appropriation for that purpose. Petitioner has established that in 1983, the Department of Budget and Management approved and released an allotment for the purchase of ITT telephone system for PUP but the contract with the original supplier thereof was rescinded due to the failure of the supplier to deliver the same. Thus, In 1985, when PUP decided to purchase the needed telephone system from Asia Pacific Phils., Inc., petitioner prepared and signed the corresponding disbursement voucher as the allotment funds therefor were intact and still available. As satisfactorily explained by petitioner, his only duty under the circumstances was to state that an allotment for the purchase of subject telephone system was existing. Respondent's finding that there was no appropriation for the purpose is therefore erroneous. As regards the disallowance of the payment of gasoline and toll gate fees for alleged lack of legal and proper documents supporting the same, the evidence on record shows that there are attached to the covering disbursement voucher duly approved driver's tickets and receipts. Disallowance in audit by the Commission on Audit may be set aside and nullified by the Supreme Court if tainted with grave abuse of discretion. 4 In the case under scrutiny, petitioner has amply shown that the COA disallowance in audit sued upon was attended by grave abuse of discretion warranting its nullification. WHEREFORE, the petition is hereby GRANTED and Decision No. 2826 of the Commission on Audit REVERSED and SET ASIDE. No pronouncement as to costs.1wphi1.nt SO ORDERED. CANDIDO AMIL, petitioner, vs. COURT OF APPEALS, and SPOUSES ERNESTO GADOR and NILA GADOR, respondents. This is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated January 29, 1996, affirming the decision of the Regional Trial Court, Branch 36, Dumaguete City, Negros Oriental, dated October 26, 1993, which declared private respondents Ernesto and Nila Gador the absolute owners of the parcel of land, covered by Transfer Certificate of Title No. 14021, in Calindagan, Dumaguete City, Negros Oriental. The facts are as follows: Petitioner Amil and private respondents Ernesto and Nila Gador executed a document entitled "Deed of Pacto de Retro Sale," dated November 14, 1987, involving the land in dispute. The parties stipulated: That Vendor A-Retro, Candido C. Amil, for and in consideration of the sum of THIRTY THOUSAND (P30,000.00) PESOS, Philippine Currency, in hand paid to him and receipt whereof is hereby acknowledged to his entire satisfaction, do by these presents, SELL, TRANSFER and CONVEY, under Pacto De Retro, unto the herein Vendees A-Retro, the spouses Ernesto T. Gador and Nila A. Gador, their heirs, successors and assigns, the above described parcel of land together with all the improvements thereon, free from all liens and encumbrances.1wphi1.nt That Vendor A-Retro, Candido C. Amil, reserve for himself the right to redeem or repurchase the property herein sold, and the Vendees A-Retro, in turn, obligate themselves to resell the

parcel of land sold, within a period of THREE (3) YEARS, from and after the due execution of this instrument, for the same price of THIRTY THOUSAND (P30,000.00) PESOS, Philippine Currency; PROVIDED, HOWEVER, that if the Vendor A-Retro, Candido C. Amil, fails to exercise his right to redeem or repurchase as herein granted within the period stipulated upon, then this conveyance shall be deemed to be an absolute and irrevocable sale, without the necessity of executing any further deed or instituting judicial action to consolidate the ownership in the name of the Vendees A-Retro. 2 The parties executed another document entitled "Addendum to Deed of Pacto de Retro Sale," dated December 12, 1987 which provided: That the Party of the First Part, the spouses Ernesto T. Gador and Nila A. Gador, are the Mortgagees of that certain parcel of land situated at Barrio Calindagan, Dumaguete City, under Transfer Certificate of Title No. 14021 and the Party of the Second Part is the Mortgagor of said parcel of land, for and in consideration of the sum of Thirty Thousand (P30,000.00) Pesos, Philippine Currency, per Doc. No. 3; Book No. 1; Page No. 1; Series of 1987 of Notary Public Jose G. Hernando, Jr., dated the 14th day of November, 1987, at Dumaguete City. That considering that the Party of the First Part has to pay an additional sum of One Thousand and Eight Hundred (P1,800.00) Pesos, Philippine Currency, to cover costs or expenses for Capital Gains Tax and Documentary Stamps, the Party of the Second Part hereby agrees and covenants that his right to redeem or repurchase the parcel of land subject matter of the Mortgage, within the period stipulated, shall cover and include said amount of (P1,800.00) or the total sum of Thirty One Thousand Eight Hundred (P31,800.00) Pesos, Philippine Currency. 3 After the redemption period had expired, private respondents filed a petition for the consolidation of their ownership over the property in question. Petitioner was declared in default as his counsel, Atty. Reynaldo Piero, failed to file an answer to the petition. Thereafter, the case was heard and on October 26, 1993, judgment was rendered by the court, the dispositive portion of which states: WHEREFORE, in view of the foregoing and considering the fact that respondent failed to file an answer to the petition or failed to appear before this Court, in spite of the Court's efforts in exerting all possible means to give the respondent his day in Court in order for him to be duly heard before this Court in connection with this case, this Court hereby renders Judgment declaring petitioners Ernesto T. Gador and Nila A. Gador as the absolute owners of the Five Hundred (500) square meters of Lot No. 782-D-4 of the Subdivision Plan, Psd07-03-006671, being a portion of Lot 782-D (LRC) Psd-120931, situated in the Barrio of Calindagan, City of Dumaguete, the same being covered by Transfer Certificate of Title No. 14021. The Register of Deeds of Dumaguete City is hereby ordered to make the corresponding annotation of the Consolidation of Ownership in the Vendees-A-Retro, Ernesto T. Gador and Nila A. Gador on the Transfer Certificate of Title No. 14021 upon payment of the prescribed fees thereof. Petitioner, through a new counsel, then filed a motion for new trial, which, however, was denied. He appealed to the Court of Appeals, which, in its decision dated January 29, 1996, affirmed the decision of the trial court. The Court of Appeals ruled: We agree with the trial court's denial of respondent-appellant's motion for new trial. Respondent had been given full opportunity to answer and be heard. It is the duty of a party litigant to make inquiries to counsel on matters concerning his case (Elino Ong Reyes vs. CA, 189 SCRA 46; Florendo vs. Florendo, 27 SCRA 432). In fact, respondent's alleged counsel never even entered his appearance. Under these circumstances, including those earlier adverted to, We rule that respondent did not exercise the ordinary prudence required of

him by Rule 37, section 1(a) of the Rules of Court, and his negligence is not excusable to justify a new trial. We find likewise without merit defendant-appellant's contentions that the Addendum dated December 12, 1987 clarifies or at least engenders doubt as to the real intent of the parties and that the contract is in reality a mortgage. The Addendum itself speaks of a capital gains tax to be paid by the spouses Ernesto and Nila Gador. It also states that Candido C. Amil "hereby agrees and covenants (that) his right to redeem on repurchase the parcel of land . . . ". Such stipulations are distinctive indicia of a sale, transfer or exchange of real property with right to repurchase. The two documents, read together and taken jointly, clearly evince a contract of sale with right to repurchase. It is therefore of no moment that the words "mortgage" and "mortgagee" were used in the Addendum. If words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former. (Article 1370, New Civil Code; SY vs. Court of Appeals, 131 SCRA 116). WHEREFORE, finding no error in the judgment appealed from, the same is hereby AFFIRMED in toto. With costs against appellant. Hence, this petition. It is contended that 1. The lower Court gravely erred in denying appellant's motion for new trial; and 2 The lower Court gravely erred in granting consolidation of ownership in favor of petitioners-appellees considering that by their own evidence, namely, the "Addendum to Deed of Pacto de RetroSale" dated December 12, 1987 (Exh. "B", Record), it is expressly stated that the contract is merely MORTGAGE, NOT PACTO DE RETRO SALE. We find the petition to be meritorious. Rule 37, 1 of the Revised Rules, of Court of 1964 provides: Within the period for perfecting appeal, the aggrieved party may move the trial court to set aside the judgment and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result; (c) Award of excessive damages, or insufficiency of the evidence to justify the decision, or that the decision is against the law. As already noted, the Court of Appeals affirmed the denial of a new trial on the ground that the failure of petitioner's original counsel to file an answer within the reglementary period cannot be considered as excusable negligence which ordinary prudence could not have guarded against. According to the Court of Appeals, petitioner is bound by the mistakes of his former counsel. To be sure, as a rule, a party is bound by the mistakes of his counsel. As we explained in Tesoro v. Court of Appeals: 4 It has been repeatedly enunciated that a client is bound by the action of his counsel in the conduct of a case and cannot be heard to complain that the result might have been different

had he proceeded differently. A client is bound by the mistakes of his lawyer. If such grounds were to be admitted as reasons for reopening cases, there would never be an end to a suit so long as new counsel could be employed who could allege and show that prior counsel had not been sufficiently diligent or experienced or learned. Accordingly, this Court has affirmed the denial by trial courts of motions for new trial on the ground that the failure of counsel to file an answer within the reglementary period cannot be considered as excusable negligence. 5 In this case, however, there are factual considerations necessitating a different outcome. First, an exception to the principle that a client is bound by the mistakes of his counsel is one wherein the negligence of the latter is so gross that the former was deprived of his day in court, as a result of which he is deprived of property without due process of law. Thus, in Legarda v. Court of Appeals, 6 this Court ordered the restoration to petitioner of her property sold at public auction in satisfaction of a default judgment resulting from the failure of her counsel to submit an answer and his lack of vigilance in protecting her interests in subsequent proceedings before the trial court and the Court of Appeals. In the instant case, petitioner was likewise declared in default because of the failure of his former counsel, Atty. Piero, to file within the reglementary period an answer to private respondents' petition for consolidation of ownership. Atty. Piero likewise failed to take any action to protect the interests of petitioner in subsequent proceedings before the trial court, such as by filing an opposition to the motion to declare him in default or by moving to set aside the order of default. It was Arty. Saleto J. Erasmes, the present counsel of petitioner, who filed the motion for new trial after a judgment by default had been rendered against him. As a consequence of his former counsel's gross negligence, petitioner was deprived of his day in court. Secondly, as we have emphasized, trial courts should be liberal in setting aside orders of default and granting motions for new trial if the defendant appears to have a meritorious defense. 7 Parties must be given every opportunity to present their sides. The issuance of orders of default should be the exception rather than the rule, to be allowed only in clear cases of obstinate refusal by the defendant to comply with the orders of the trial court. 8 Thirdly, petitioner appears to have a meritorious defense. Indeed, it would appear that the contract between petitioner and private respondents is an equitable mortgage rather than a pacto de retro sale. Arts. 1602 and 1603 of the Civil Code provide: Art. 1602. The contract shall be presumed to be an equitable mortgage, in any of the following cases: (1) When the price of a sale with right to repurchase is unusually inadequate; (2) When the vendor remains in possession as lessee or otherwise; (3) When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed; (4) When the purchaser retains for himself a part of the purchase price; (5) When the vendor binds himself to pay the taxes on the thing sold; (6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall procure the payment of a debt or the performance of any other obligation.

In any of the foregoing cases, any money, fruits, or other benefit to be received by the vendee as rent or otherwise shall be considered as interest which shall be subject to the usury laws. Art. 1603. In case of doubt, a contract purporting to be a sale with right to repurchase shall be construed as an equitable mortgage. The price of P30,000.00 for the subject property appears to be unusually inadequate. Furthermore, the words "mortgage," "mortgagor," and "mortgagees" appear in the "Addendum to Deed of Pacto de Retro Sale." Finally, it should be noted that the "Deed of Pacto de Retro Sale" provides that "if the Vendor ARetro, Candido C. Amil, fails to exercise his right to redeem or repurchase as herein granted within the period stipulated upon, then this conveyance shall be deemed to be an absolute and irrevocable sale, without the necessity of executing any further deed or instituting judicial action to consolidate the ownership in the name of the Vendees A-Retro." This stipulation is void for being a pactum commissorium. 9 Considering all these, the trial court should have granted petitioner a new trial to enable him to present evidence on the true nature of the contract in question. WHEREFORE, the decision of the Court of Appeals dated January 29, 1996, is hereby REVERSED and the case is REMANDED to the Regional Trial Court, Branch 36 Dumaguete City, Negros Oriental for further proceedings in accordance with this decision.1wphi1.nt SO ORDERED. ERLINDA M. VILLANUEVA, herein represented by her Attorney-in-fact LEOPOLDO SAN BUENAVENTURA, TEOFILA N. ALBERTO, HARRY ASAA, ANGEL CHENG, MA. LOURDES NG, DOMINGO F. ISRAEL and CATALINO IMPERIAL, JR., petitioners, vs. HON. ANGEL S. MALAYA, as Judge of RTC of Naga City, Branch XXII, ROSARIO B. TORRECAMPO, ANASTACIO BONGON, ROQUE ANGELES, REGISTER OF DEEDS of Naga City and RUBEN SIA, respondents. Separate petitions for review on certiorari assailing the decision of the Court of Appeals (Third Division) dated August 13, 1990 1 in CA-G.R. SP No. 19533, and the resolution dated September 13, 1990 affirming said decision on reconsideration. This case originated from an action for rescission of contract, docketed as Civil Case No. R-570 before Branch 22 of the Regional Trial Court ("RTC") of Camarines Sur and entitled "Irene P. Mariano, plaintiff, versus Francisco M. Bautista, defendant". The subject of the action was a joint venture contract between Mariano and Bautista for the development of a memorial park, one of a number of unfinished projects of Irene Mariano's late husband, Don Macario Mariano. In a decision dated December 14, 1979, then presiding judge Jorge S. Imperial ordered the rescission of the contract, which decision was later modified by the then Intermediate Appellate Court ("IAC") in this manner: a) rescinding the contract of joint venture and addendum thereto on the ground of mutual violations of the same by both contracting parties; b) . . . c) declaring the land subject matter of the contract of joint venture as the property of the plaintiffappellee, together with all the improvements thereon as well as the income supposedly accruing to the plaintiff-appellee, as owner of the said property without prejudice to the right of the other coowners of the land in question;

d) plaintiff-appellee to reimburse defendant-appellant the sum of P395,639.84 for development costs and P155,553.81 for cash advances to the Sto. Nio Memorial Park, Inc. with 12% interest from the date of the judgment until fully paid subject to what shall be done with the amount of P155,553.84 as outlined in the body of this Decision. 2 For Irene's failure to comply with her obligations in the aforecited decision, a Writ of Execution for the satisfaction of said decision was issued and on November 24, 1986, the subject property, consisting of a 2,154 square meter prime land and the ancestral house and commercial building standing thereon, was levied on execution. Petitioner Erlinda Mariano Villanueva, legally adopted daughter of Irene Mariano 3 , alleges that the subject property is one of several properties that she (Erlinda), her adoptive brother Jose, and Irene inherited from Don Macario Mariano who died on December 2, 1971. On July 21, 1972, Irene and Jose executed a document denominated as "Indenture of Extrajudicial Settlement of Estate" 4 , which Erlinda signed and which was acknowledged on September 8, 1972 before the Philippine Consulate in Honolulu, Hawaii. The Indenture designates the disputed property as one of the properties of the conjugal estate, and distributes the total conjugal estate in pro-indiviso shares in this manner: "(a) to Irene P. Mariano, one-half (1/2) of the entire estate plus one-third (1/3) of the other half; (b) to Jose P. Mariano and Erlinda Mariano Villanueva, one third (1/3) each of the remaining half of the estate." The Indenture likewise appoints Irene as administrator of the properties. By virtue of the above Indenture of Extajudicial Settlement, Transfer Certificate of Title ("TCT") No. 1964 5 in the name of Macario Mariano was cancelled and TCT No. 6567 6 was issued in lieu thereof in the names of Irene P. Mariano, with 4/6 share; Jose P. Mariano, married to Helen Severo, with 1/6 share; and Erlinda Mariano, married to Melchor Villanueva, Jr. with 1/6 share. Through an Affidavit of Merger 7 executed by Irene Mariano on February 6, 1974 and notarized on February 7, 1974, said TCT No. 6567 was cancelled and TCT No. 7261 was issued in the name of Irene Mariano. The Affidavit declared that the merger was pursuant to her powers as administrator in the Indenture dated July 21, 1972, was not for fraud, and was made "in the interest and in furtherance of the family realty enterprise and in order to facilitate real estate dealings." 8 Based on a Deed of Sale dated April 15, 1975 9 , it appears that Irene conveyed the disputed property to a certain Raul Santos, by virtue of which, on October 2, 1987, TCT No. 7261 was cancelled and TCT No. 17745 in the name of Raul Santos issued in lieu thereof. Irene died on June 26, 1988. On July 18, 1988, Jose and Erlinda filed a complaint against Raul Santos for annulment of the Deed of Sale dated April 15, 1975, on grounds of forgery and simulated sale. The case, docketed as Civil Case No. 88-1506, was pending with the RTC, Branch 21 of Camarines Sur at the time the instant petitions were filed on August 31, 1990 and October 2, 1990, respectively.1wphi1.nt In an Order dated December 6, 1988 10 , issued by herein respondent Judge Angel Malaya, Erlinda and Jose were declared legal representatives of Irene in Civil Case No. R-570. Upon petition of Erlinda and Jose, the Second Division of this Court issued on December 8, 1988 a Temporary Restraining Order ("TRO") directing the RTC and respondent ex-officio provincial sheriff Rosario Torrecampo to desist from proceeding with the public auction sale in Civil Case R-570 scheduled on December 9, 1988. The TRO, however, was not enforced because the public sale proceeded as scheduled in the morning of December 9, 1988. As respondents contend, a copy of the TRO was received by respondent judge and respondent sheriff only in the afternoon of December 9, 1988, or after the sale in public auction of the disputed property on the morning of the same day. The highest bidder to the property was herein private respondent Ruben Sia. On December 12, 1988, a Provisional Deed of Sale in favor of Sia was registered with the Office of the Register of Deeds of Naga City.

In letters respectively dated November 2, 1989 11 and November 7, 1989 12 addressed to private respondent Sia and respondent sheriff, Jose signified his intention to redeem the property as heir of Irene Mariano. On November 20, 1989, the RTC, Branch 28 of Camarines Sur issued a TRO. in Civil Case No. 89-120, entitled "Godofredo Uy versus Rosario B. Torrecampo", 13 restraining Jose from redeeming the property and respondent sheriff from accepting the redemption money or allowing the consignation thereof. The TRO was issued on the basis of the allegations in Uy's complaint that he was the assignee of Jose to the latter's redemption rights over the subject property, and a redemption by Jose of said property would be prejudicial to Uy's rights obtaining from such assignment. On December 1, 1989, this TRO was extended by the same court for another 20 days, and to include any attempt at redemption by Erlinda. 14 On November 22, 1989, Erlinda and her attorney-in-fact Atty. Leopoldo E. San Buenaventura tendered a cashier's check 15 in the amount of P1,562,568.67, representing the principal of P1,400,000.00 plus interest of P162,568.67 at 1% per month to private respondent Sia who refused to accept it and said that he needed to consult his lawyers first. Several more tenders of the same check were made to private respondent Sia and respondent sheriff on November 23, December 4 and December 7, 1989, all of which were not accepted. For his part, private respondent Sia explained to respondent sheriff that he was "at a loss" as to who to accept payment from, considering that several parties, namely, Jose and Erlinda Mariano, Godofredo Uy, and Rolando Relucio 16 had signified their intention to redeem the property. 17 Acting on the matter, respondent sheriff filed a "Motion to Determine Rightful Redemptioner" 18 dated November 27, 1989 in Civil Case No. R-570. On December 7, 1989, and after her last tender to Sia, Erlinda through Atty. Buenaventura consigned the redemption price to respondent judge, who received the petition for consignation but refused to accept the cashier's check. Meanwhile, Jose Mariano died on December 2, 1989. Also, in the course of making tenders of payment to Sia and respondent sheriff, Erlinda executed two Deeds of Sale, both dated November 23, 1989 19 , in favor of petitioners Alberto, Azana, Cheng, Ng, Israel and Yap-Imperial (hereafter, "petitioner-lesees"), lessees of the commercial building situated on the disputed property, over the commercial building and the land on which it is situated, on the condition that such property be first redeemed by Erlinda from Sia. Petitionerlessees then wrote respondent sheriff of such development, 20 which was in turn brought to the attention of the trial court in the above "Motion to Determine Rightful Redemptioner". On December 8, 1989, respondent judge issued an Order passing upon the right to redeem the subject property. The dispositive portion of the Order reads: WHEREFORE, premises considered, the following persons may exercise right of redemption: a) Jose Mariano and assignee Godofredo Uy, to the extent of the proportionate share of coheir Jose Mariano to the common property; b) Erlinda Mariano (Villanueva) and assignee IPR Bldg. 1, through Teofila Alberto, to the extent of the proportionate share of co-heir Erlinda Mariano (Villanueva) to the common property; c) Deny the right of redemption of Raul Santos and Rolando Relucio. SO ORDERED.

On the same day the Order was issued, respondent sheriff received a letter from respondent Sia asking for the execution of a Definite Deed of Sale in his favor of the subject property, on the ground that the redemption period of twelve months or 360 days had expired as of December 7, 1989 with no redemption having been effected. Acting upon this request, respondent deputy sheriffs Bongon and Angeles issued a Definite Deed of Sale 21 of the property in favor of Sia on December 11, 1989. Completely unmindful of these developments and obtaining from the favorable Order of December 8, 1989 of the trial court, Erlinda filed on December 11, 1989 a "Manifestation for Perfection of Consignation." in Civil Case No. R-570. On December 12, 1989, she also filed a petition for mandamus to compel respondent sheriff and respondent Sia to accept the preferred redemption money. The case was docketed as Spec. Proc. No. MC 89-1945 in RTC, Branch 24 of Camarines Sur, and was still pending at the time the instant petitions were filed with this Court. Also on December 12, 1989, respondent Sia filed in Civil Case No. R-570 an Ex-Parte Motion for cancellation of TCT No. 17745 in the name of Raul Santos and the issuance in lieu thereof of a title in his name. Thus, in an Order dated December 14, 1989, the trial court treated petitioner Erlinda's "Manifestation for Perfection of Consignation" as a motion for consignation and denied the same on the ground that respondent Sia was already issued a Definite Deed of Sale, hence rendering the matter moot and academic. On the same day, respondent judge issued another Order, this time cancelling TCT No. 17745 and ordering the Register of Deeds of Naga City to issue a new TCT in favor of Sia. Pursuant to this Order, TCT No. 20201 was issued in the name of Ruben Sia. Upon learning that respondent deputy sheriffs executed in favor of Sia a Definite Deed of Sale, petitionerlessees moved for the cancellation of said deed before the trial court. In two separate Orders both dated December 18, 1989, the trial court denied said motion, declaring that the cancellation of said deed is a matter that would be better threshed out in a separate proceeding, and denied for lack of merit petitionerlessees' motion for reconsideration of the Order dated December 14, 1989. On December 20, 1989, respondent Sia filed an Ex-Parte Motion for the Issuance of a Writ of Possession over the subject property, which respondent judge granted. Thus, on December 21, 1989, herein petitioners filed with respondent Court of Appeals a petition for certiorari and prohibition under Rule 65 of the Rules of Court with prayer for the issuance of a writ of preliminary injunction and/or restraining order from the orders of respondent judge. On December 22, 1989, the Sixteenth Division of the Court of Appeals granted the TRO. Oral arguments were heard and on January 23, 1990, the same Division issued the corresponding writ of preliminary injunction. On August 13, 1990, the Third Division of the Court of Appeals rendered a Decision the dispositive portion of which reads: ACCORDINGLY, the instant petition is hereby DISMISSED for lack of merit and correspondingly, the preliminary injunction issued on January 23, 1990 is hereby lifted and dissolved. Private respondent Sia is hereby declared the rightful and registered owner of the property covered by Transfer Certificate of Title No. 20201 of the Register of Deeds of Naga City and is hereby entitled to the immediate possession thereof. Without costs in this instance. SO ORDERED. In the wake of the lifting of the preliminary injunction, respondent Sia moved for the issuance of an alias writ of possession over the disputed property, which the trial court granted on August 28, 1990.

From the August 13, 1990 decision of the Court of Appeals Erlinda's Urgent Motion for Reconsideration was denied in a Resolution promulgated on September 13, 1990. Aggrieved, petitioner-lessees and petitioner Erlinda separately filed the herein petitions for review on certiorariwhich were docketed as G.R. Nos. 94617 and 95281, respectively. In G.R. No. 95281, Erlinda assigns the following errors of respondent court: In holding that Erlinda had no right of redemption, without considering that she is a co-owner and judicially declared legal representative and the rightful redemptioner of the property in dispute. In declaring private respondent Sia the rightful and registered owner of the property in question and granting him immediate possession thereof, without due process of law on the part of the lessees and herein petitioner, disregarding the significant fact that the 10-door concrete commercial building was not covered by the questioned and forged deed of sale in favor of Raul Santos. In denying, through a minute resolution, the Urgent Motion for Reconsideration of petitioners without considering the very important and significant matters together with the jurisprudence cited therein. In lifting and dissolving the writ of preliminary injunction issued on January 23, 1990 by the Sixteenth Division without considering the irreparable injury and damage caused herein petitioners. In not considering the temporary restraining order issued by the Second Division of the Supreme Court under G.R. No. 82468 which interrupted the running of the period of redemption. In not considering the two temporary restraining orders issued by RTC, Branch 23, Naga City enjoining petitioners from redeeming the property in dispute and also without considering the motion to determine the rightful redemptioner, and the petitions for consignation and mandamus filed before the competent courts, which all interrupted the running of the prescriptive period of redemption. In considering TCT No. 17745 under the name of Raul Santos as valid, legal and flawless, without considering the fact which is of judicial notice that the deed of sale, of subject property is being litigated in the lower court, RTC Branch 21, Naga City, and the said property is effectively in custodia legis at the date the questioned title was transferred to Raul Santos. In G.R. No. 94617, meanwhile, it is the position of petitioner-lessees that the writ of possession is void as against them because it violated their right to due process and was not issued pursuant to a final judgment in an ejectment case where they were properly impleaded. 22 Thus, their Amended Petition 23 points to the following errors of respondent court: In upholding the writ of possession as against the petitioners who are lessees of the commercial building in question and in dissolving the writ of injunction. In not declaring void the Order of December 14, 1989, the two orders of December 18, 1989 and the Order of December 20, 1989. G.R. No. 94617 was originally assigned to the First Division of this Court and G.R. No. 95281 with the Third Division. However, both petitions having arisen from the same decision of the Court of Appeals, and there being no material inconsistencies in the issues raised and reliefs sought by Erlinda and petitioner-lessees, the cases were consolidated and assigned to the Third Division per Resolution dated February 18, 1991. 24

Preliminary, let it be emphasized that the case was elevated to us by petition for review on certiorari under Rule 45 of the Rules of Court. While Judge Angel Malaya, sheriff Rosario Torrecampo and deputy sheriffs Anastacio Bongon and Roque Angeles were impleaded as respondents in the petitions, the appeal is technically restricted to a review of the decision of the Court of Appeals alone, based on petitioners' assignment of errors. The decision of the Court of Appeals basically held that Erlinda, from whose right of redemption petitionerlessees obtain, is not qualified to redeem the property in question. It was respondent court's finding that at the time of the levy on execution on November 24, 1986, the property was under the exclusive ownership of Irene Mariano under TCT No. 7261, and as evidenced in the annotation at the back of TCT No. 6567 which states: "This Certificate of Title is cancelled in favor of Irene P. Mariano and TCT No. 7261 is issued by virtue of an affidavit of merger . . . ".25 The CA decision went on to say that between petitioner Erlinda and Raul Santos, it was Raul Santos who had the right to redeem as successor-in-interest to deceased judgment debtor Irene Mariano by virtue of the sale of the property in his favor which was registered on October 2, 1987. Because no redemption was made by Raul Santos until the expiration of the twelve-month period for redemption on December 7, 1989, respondent court concluded that the RTC did not abuse its discretion in issuing its contested orders, namely: (1) denying Erlinda's motion for consignation of redemption money; (2) allowing the issuance of TCT No. 20201 to respondent Sia; (3) denying the motion to annul the Definite Deed of Sale in favor of Sia, as well as the motion for reconsideration of the same; and (4) allowing the issuance of a writ of possession to respondent Sia. For all the factual intricacies of the instant case, its resolution essentially boils down to a determination of whether Erlinda Mariano was qualified to redeem the property. Under Section 29, Rule 39 of the Rules of Court, 26 real property sold on execution may be redeemed by: (a) The judgment debtor, or his successor-in-interest in the whole or any part of the property; xxx xxx xxx

The "successor-in-interest" contemplated by the above provisions includes a person to whom the judgment debtor has transferred his right of redemption, or one to whom he has conveyed his interests in the property for purposes of redemption, or one who succeeds to his property by operation of law, or a person with a joint interest in the property, or his spouse or heirs. 27 A compulsory heir to the judgment debtor qualifies as a successor-in-interest who can redeem property sold on execution. 28 As a legally adopted daughter of Irene Mariano, Erlinda had all the successional rights of a legitimate child 29 to the property at the time of Irene Mariano's death on June 26, 1988. Having taken the property subject to the decedent's liabilities, she should not be prohibited from exerting efforts at ensuring its preservation, including the exercise of the statutory right of redemption. 30 This was in fact the reasoning of the RTC in its Orders dated December 6, 1988 and December 8, 1989, in declaring Jose and Erlinda legal representatives of Irene in Civil Case No. R-570 and in upholding their right to redeem, since the heirs' interest in the preservation of the estate and the recovery of the property is greater than anybody else's, including the administrator's who merely holds the property for the creditors and heirs of decedent. 31 Having upheld Erlinda's right to redeem, we come now to why Raul Santos could not have had the right to redeem the disputed property, contrary to the conclusion of respondent court. In the first place, Raul Santos is not a party to the instant case, and while his interest in the property is being litigated in Civil Case No. 88-1506, it is in that case and not herein that such matter should be resolved. No man shall be affected by proceedings to which he is a stranger. 32 Second, in holding Santos to be Irene's successor-in-interest because of his being a subsequent vendee to the property, respondent court in effect ruled upon the validity of the Deed of Sale of April 15, 1975, a matter over which it had no jurisdiction to decide and which is properly the subject of the pending Civil Case No. 88-1506. Third, respondent court based the right to redeem upon the purported transfer of ownership to Santos of the property. The right of redemption is explicitly conferred by Section 29, Rule 39 of the Rules of Court on the judgment debtor and his successors-

in-interest; it is not conditioned upon ownership of the property but by virtue of a writ of execution directed against the judgment debtor. 33 Also, regardless of the validity of the Deed of Sale of April 15, 1975, it is evident that the lien created by the levy on execution in Civil Case No. R-570 is superior to such subsequently registered private sale. While the Deed of Sale in Santos's favor was ostensibly executed as early as April 15, 1975, it was not registered until October 2, 1987, or after the levy on execution on November 24, 1986. This Court has invariably held that a levy on execution duly registered takes preference over a prior unregistered sale, and even if the prior sale is subsequently registered before the execution sale but after the levy was duly made, the validity of the execution sale should be maintained because it retroacts to the date of the levy; otherwise the preference created by the levy would be meaningless and illusory. 34 Thus, the only question remaining insofar as concerning petitioner Erlinda is whether she exercised her right to redeem properly and seasonably. The right of redemption over property sold on execution may be exercised within twelve months 35 from the date of registration of the certificate of sale 36 . Where tender is made of the redemption price within the period to redeem and the same is refused, the same constitutes a valid exercise of the right to redeem and it is not necessary that it be followed by the depositor consignation of the money in court. 37 No interest after such tender is demandable on the redemption money. 38 In the instant case, petitioner Erlinda exercised her right to redeem as of November 22, 1989 (or before the expiration of the twelve-month period of redemption on December 7, 1989) when she tendered a cashier's check equivalent to the redemption price to private respondent Sia. Notably, the tender was effected before the RTC, Branch 28 of Camarines Sur issued a TRO on December 1, 1989 enjoining Erlinda from redeeming the property. In point of time, nothing prevented Erlinda from redeeming the property on November 22, 1989; besides, the TRO is clearly void and of no effect as to her, since it was issued in favor of Godofredo Uy on the basis of his being the assignee to the redemption rights of Jose Mariano over the property. Such ground does not and should not impinge upon Erlinda's own right of redemption. In declaring as valid Erlinda's redemption of the property, we find it no longer necessary to pass upon the other assignments of error in G.R. No. 95281. For their part, petitioner-lessees raise no claim to redeem the property as assignees of Erlinda, and rightly so; no right of redemption accrued in their favor by reason of the Deeds of Sale dated November 23, 1989 since the deeds clearly intended to convey the property itself, conditioned upon the successful redemption thereof by Erlinda from Sia, and not the right to redeem the same. The pronouncements in this decision, therefore, shall be without prejudice to petitioner-lessees' enforcement of their rights under the aforecited Deeds of Sale.1wphi1 As for the matters raised in G.R. No. 94617, in addition to the fact that the writ of possession issued against petitioner-lessees is void by reason of Erlinda's timely and valid redemption, we cite the discussion in Malonzo vs. Mariano, 173 SCRA 667, 39 that a writ of possession may issue against occupants of a property subject of execution who derive their right of possession from the judgment debtor upon motion in the execution proceedings and without need of a separate ejectment action, provided that the occupants are afforded an opportunity to explain the nature of their possession, on which basis the writ of possession will be denied or granted. In this case, the RTC's granting of the writ of possession ex parte violates petitioner-lessees' right to due process. Consequently, we reverse respondent court insofar as it upheld the said RTC Order. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. SP No. 19533 is ANNULLED and SET ASIDE, and a new one entered ORDERING the Provincial Sheriff of Camarines Sur to accept payment of redemption money for the property levied in Civil Case No. R-570 from petitioner Erlinda Mariano, computed as of November 22, 1989, and upon receipt thereof, to execute and deliver to Erlinda Mariano a duly

accomplished certificate of redemption of said property. The Definite Deed of Sale issued in favor of private respondent Ruben Sia and thealias writ of execution issued pursuant to the Order of the Regional Trial Court, Branch 22 of Camarines Sur dated August 28, 1990 are NULLIFIED. Costs against private respondent. SO ORDERED. NASSER IMMAM, petitioner, vs. COMMISSION ON ELECTIONS and HADJI YUSOPH LIDASAN, respondents. Petitioner Nasser Immam filed this petition for certiorari under Rule 65 of the Revised Rules of Court, alleging that public respondent Commission on Elections en banc ("COMELEC") committed grave abuse of discretion when it issued order dated June 29, 1998, to wit:1 CONSOLIDATED ORDER Without the prejudice to the issuance at a later time of a formal Resolution in these cases, but based on the pleadings, the evidence adduced during the hearing, the allegations uncontroverted by the parties and facts established therein, the effects and consequences of the proclamation for the position of Municipal Mayor per Certificate of Canvass of Votes and Proclamation with SN 12471426 issued by the Municipal Board of Canvasser of Matanog, Maguindanao is hereby suspended. As a corollary consequence, Nasser Imam is directed to cease and desist from taking his oath of office as Municipal Mayor and from discharging the functions of said office. The facts are undisputed. Petitioner Nasser Immam and private respondent Hadji Yusoph Lidasan were both candidates for Mayor of Matanog. Maguindanao in May 11, 1998 elections. On election day, fifty-five (55) precincts, manned by their respective board of election inspector were opened in the municipality.2 On May 16, 1998 the COMELEC (Office of the Election Officer, Matanog, Maguindanao) issued a certification that only the votes cast in forty-one (41) out of the fifty-five (55) precincts were counted. The COMELEC certified that fourteen (14) ballot boxes consisting of 2,398 registered voters failed to function. Seven (7) of the fourteen (14) ballot boxes were deposited in the office of the provincial election supervisor, Cotabato City, while the other seven (7) were deposited for safe-keeping with the 1506th (405) Provincial Mobile Group Parang, Maguindanao.3 On May 22, 1998 private respondent filed with the COMELEC, a "Petition to Count the Ballots Cast on May 11, 19984 and for Holding of Special Elections5 . . . with Urgent Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction"6 which was docketed as SPA Case No. 98-348. The petition alleged that the election inspectors of fourteen (14) precincts left the polling places due to "violence, terrorism, and armed threats perpetrated by armed men, hence the continuation of voting did not take place."7 On May 29, 1998, while the petition was still pending with the COMELEC, the Municipal Board of Canvassers of Matanog issued a Certificate of Canvass of Votes and proclaimed petitioner as the duly elected mayor garnering a total of one thousand six hundred twenty four (1,624) votes.8 On June 1, 1998, Election Officer III, Abas A. Saga submitted a report to the COMELEC hereinunder quoted in full:9 Hon. Commission-In-Charge for Regions IX & XII

Commission on Elections Manila Subject: Report on the Result of Elections in Matanog, Maguindanao Sir: The municipality of Matanog has 55 precincts. Only 41 precincts have functioned during the May 11, 1998 elections. Fourteen were not included in the counting due to the incidence of violence for the 7 boxes and no election was actually held in the 7 other boxes as BEIs reported. On May 13, 1998 I reported the matter to the Commission and together requested for the special elections in the 14 precincts that failed to function. Unfortunately, until May 26, 1998 no petition was filed by any candidate moving for special election. Now, although the Matanog problem was among the subjects of the Commission Minutes-Resolution dated May 26, 1998, it was not however among the places where special elections shall be held on May 30, 1998. Considering this time delay, threats of my life from among the candidates has become obvious. This is the thing, aside from the fact that there has been no Comelec Resolution and pending petition, has become the catalyst towards considering the Urgent Motion filed by petitioner Imam and proceeded to the mandates of the law to determine from the Statement of the Votes by Precinct as to who are the winners and proclaimed.1wphi1.nt Relative to the said proclamation may I furnish the herein copies of COC & Proclamation with SN 12471426, Minutes of the MBC and the Urgent Motion for the MBC to reconvene filed by the petitioner's counsel. I shall appreciate your kind consideration hereof. Very truly yours, (Sgd.) ABAS A. SAGA Election Officer III On June 3, 1998, private respondent again filed a petition with the COMELEC docketed as SPC Case No. 98223, praying that the proclamation of petitioner be declared void and that all acts emanating from the said proclamation also be voided.10 Despite the pendency of the aforesaid petitions, petitioner took his oath of office on June 25, 1998.11 On June 29, 1998, the COMELEC issued its assailed order which suspended the effects and consequences of petitioner's proclamation pending its resolution of SPA Case No. 98-348 and SPA Case No. 98-223.12 Petitioner is now before this Court praying for the issuance of a temporary restraining order directing the COMELEC to cease and desist from enforcing and implementing the questioned order.13 On July 21, 1998, this Court issued a Resolution directing the parties to maintain the status quo ante and ordering the COMELEC in the meantime to desist from implementing its June 29, 1998 order and to allow petitioner to continue to discharge his functions as mayor of Matanog, Maguindanao.14 On August 11, 1998, upon petitioner's urgent motion,15 this Court clarified that under the July 21, 1998 Resolution, petitioner was allowed to "discharge his functions as Mayor of Matanog, Maguindanao, until the validity of the Commission on Elections' Order is resolved by this Court.16

We shall discuss the petitioner's arguments against the COMELEC order of June 29, 1998 seriatim. First. Petitioner claims it is unfair that he is the only candidate whose proclamation was suspended considering that all other officials of the local government of Matanog were proclaimed on the basis of the same Certificate of Canvass and Election Returns, Petitioner asks, "How could a proclamation be valid for some and be invalid for (him). . .?"17 We are not persuaded. To be sure, the order does not deal with the validity or invalidity of the proclamations of petitioner and of the other officials. It merely suspended the effects and consequences of the proclamation of petitioner "without prejudice to the issuance at a later time of a formal resolution in these cases (SPA Case No. 98-348 and SPC Case No. 98-223)."18 The order does not decide the two petitions on the merits. The validity or invalidity of the election of petitioner and the other candidates are still subject to the determination of SPA Case No. 98-348 and SPC Case No. 98-223. If the special election and counting of ballots were to be held only for the position of mayor, then unfairness would result. In Tupay T. Loong v. Commission in Elections and Abdusakur Tan,19 we held that a special election only for the position of Governor cannot be sanctioned since other officials already serving their terms were proclaimed on the basis of the same manually counted votes. Thus, to hold a special election only for one position would be discriminatory and violative of the private respondent's right to equal protection of the laws. Such is not the case here. Moreover, while it is true that only petitioner's proclamation was affected by the assailed order, we note that he was singled out by private respondent who filed the petitions and not by public respondent COMELEC. Since he was the only one impleaded, then only his proclamation was suspended. Second. Petitioner argues that it was error on the part of public respondent COMELEC to suspend the effects of petitioner's election as it would create a hiatus in government service. According to the petition, "It will be totally unfair to petitioner and the rest of the electorate of Matanog, Maguindanao to be deprived of a Mayor just because of the indecisiveness and inaction of respondent COMELEC on the issue of whether or not to hold special election in these fourteen (14) precincts."20 Petitioner's argument lacks merit. While it may be true that Matanog will be temporarily deprived of mayor, greater unfairness would result if the voters were disenfranchised. A greater evil occurs when one not properly voted for sits in a position of power without the clear mandate of the people. Jurisprudence provides that all votes cast in an election must be considered, otherwise voters shall be disenfranchised.21 A canvass cannot be reflective of the true vote of the electorate unless and until all returns are considered and none is omitted.22 In this case, fourteen (14) precincts were omitted in the canvassing. Even the hiatus which would allegedly result is imagined. The Local Government Code provides a solution in case of a temporary vacancy in the office of the mayor.23 This provision may be applied in this case of a temporary suspension of the effects and consequences of petitioner's proclamation as Mayor of Matanog, Maguindanao. Hence, we find no grave abuse in the COMELEC's suspension of petitioner's proclamation.

Third. Petitioner contends that the COMELEC had no jurisdiction to order petitioner to "cease and desist" from taking his oath of office as Mayor of Matanog considering that there was no pending pre-proclamation issue. Records show that on May 16, 1998 a certification was issued by the Office of the Election Officer, Matanog, Maguindanao, stating:24 Considering the number of voters whose precincts failed to function will materially affect the total results of elections, NO proclamation will be made until such time proper and legal to do so. Despite the certification, the municipal board of canvassers proceeded to proclaim petitioner as the mayoral winner. At the time the proclamation was made, the COMELEC had not yet resolved the Petition for Canvassing of Votes and Petition for Special Elections filed on May 22, 1998. Pursuant to Sections 24525 and 23826 of the Omnibus Election Code, the Board of Canvassers should not have proclaimed any candidate absent the authorization from the COMELEC. Any proclamation made under such circumstances is void ab initio.27 An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation.28 A canvass cannot be reflective of the true vote of the electorate unless all returns are considered and none is omitted.29 This is true when the election returns missing or not counted will affect the results of the election.30 We note that the votes of petitioner totaled one thousand nine hundred and sixty one (1,961) while private respondent garnered a total of one thousand nine hundred thirty (1,930) votes. The difference was only thirty-one (31) votes. There were fourteen (14) precincts31 unaccounted for whose total number of registered voters are two thousand three hundred and forty eight (2,348).32 Surely, these votes will affect the result of the election. Consequently, the non-inclusion of the 14 precincts in the counting disenfranchised the voters. We therefore find that COMELEC had sufficient reason to suspend the proclamation of petitioner. Fourth. Petitioner alleges that the questioned order was issued without any motion for its issuance and without notice and hearing. Thus, he claims, his right to due process was violated. He alleges that the order was issued in an apparent haste "to beat the deadline of noon of June 30, 1998 the start of the term of elective local officials as provided under the 1991 Local Government Code."33 The accusation imputed on COMELEC must fail as there is a presumption of good faith and regularity in the performance of official duty which petitioner miserably failed to rebut. On the question of due process, we likewise reject petitioner's argument. The essence of due process is the opportunity to be heard.34 The right to be heard does not only refer to the right to present verbal arguments in court. A party can be heard through the pleadings he submits.35 In Jardiel v. Commission on Elections,36 petitioner controverted the complaint of respondents with affidavits. In that case, we ruled that with substantial evidence from both parties on hand, the Commission on Election can consider the case submitted for decision. In the case at bar, petitioner was heard by the COMELEC through the memorandum he submitted. Fifth. Petitioner assails the order issued by the COMELEC en banc. The consolidated cases37 were originally heard by the COMELEC's First Division. Petitioner contends that his right to due process was violated when the case was transferred to the COMELEC en banc without notice to him.

We note that it is petitioner himself who prayed that petition SPA 98-348 be heard by the Commission en banc.38And rightly so. The law provides that petitions for a special election must be addressed to the COMELEC sitting en banc. Section 6 of the Omnibus Election Code should be read in relation to Section 4 of R.A. No. 7166 which provides: Sec. 4. Postponement, Failure of Election and Special Elections The postponement, declaration of failure of elections and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after casting of votes or on the day of the election. The grounds for failure of election (force majeure, terrorism, fraud or other analogous cases) involve questions of fact which can only be determined by the COMELEC en banc after due notice and hearing to the parties.39 The fact that petitioner was not given notice specifically stating that the case was transferred to the en banc did not affect the legality of the order. In administrative proceedings, technical rules of procedure and evidence are not strictly applied. Administrative process cannot be fully equated with due process in the strict judicial sense. Indeed, deprivation of due process cannot be successfully invoked where a party was given the chance to be heard.40 WHEREFORE, the instant petition for Certiorari is DISMISSED finding no grave abuse of discretion on the part of public respondent COMELEC. Accordingly, our status quo ante order contained in the Resolution dated July 21, 1998 is LIFTED. No costs. SO ORDERED. SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. The petition at our doorstep is cast against the following factual backdrop: On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties. On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC): A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty 5 years on each count); B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each count); C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years on each count); D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on each count); E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty less than one year). (p. 14, Rollo.) On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo). Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request. In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons: 1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents. 2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests. 3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously. (pp. 77-78, Rollo.) Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively);certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104105, Rollo). The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion. After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied. On August 10, 1999, respondent judge issued an order dated the previous day, disposing: WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts

complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court. The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date. SO ORDERED. (pp. 110-111, Rollo.) Forthwith, petitioner initiated the instant proceedings, arguing that: PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: I. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUSIN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES; II. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW; III. THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND IV. PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY. (pp. 19-20, Rollo.) On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing: NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in

your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-94684. GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999. (pp. 120-121, Rollo.) The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda. From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty? The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court. To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows: The Extradition Request The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by: 1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force; 2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts; 3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and

4. Such other documents or information in support of the request. (Sec. 4. Presidential Decree No. 1069.) Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides . . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case. The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task? In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by: 1. Documents, statements, or other types of information which describe the identity and probable location of the person sought; 2. A statement of the facts of the offense and the procedural history of the case; 3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested; 4. A statement of the provisions of law describing the punishment for the offense; 5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense; 6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable. (Paragraph 2, Article 7, Presidential Decree No. 1069.) 7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there; 8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and 9. A copy of the charging document. (Paragraph 3, ibid.) The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs). In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation."

The Extradition Petition Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.). The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee. The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings. Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.). The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1wphi1.nt With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under nonmilitary penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers. However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice,

indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request. The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation. Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a wellfounded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination? The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64). The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution. In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and

obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78,Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436). In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against selfincrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property. Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the

investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense. By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty. Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken.Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing. As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty commitments. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366). Due process is comprised of two components substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural

due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64). In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. These twin rights may, however, be considered dispensable in certain instances, such as: 1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution; 2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and 3. Where the twin rights have previously been offered but the right to exercise them had not been claimed. Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or

judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 andEx parte Tucker, Cr., 324, S.W.2d 853). In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815). In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit: 1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel. 2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. 3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.) 4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.) 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).] 6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. 3186). 7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may

present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned. From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity the Department of State which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. We agree with private respondent's citation of an American Supreme Court ruling: The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. (Stanley vs. Illinois, 404 U.S. 645, 656) The United States, no doubt, shares the same interest as the Philippine Government that no right that of liberty secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency. (pp. 40-41, Private Respondent's Memorandum.) In the Philippine context, this Court's ruling is invoked: One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]). There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition. In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with? Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an administrative if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest. Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside. Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.). Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material

when a third person, who is not directly affected by the matters requested, invokes the right to information. However, if the person invoking the right is the one directly affected thereby, his right to information becomes absolute. The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing". When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him. The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions. In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution? First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12). The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the

provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.). In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence. Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents. We disagree. In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410). Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial. A libertarian approach is thus called for under the premises. One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy.

Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto? The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069? Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals: . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . . (at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent. In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible. We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid. WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed. SO ORDERED. In the context of the factual milieu of private respondent, there is really no threat of any deprivation of his liberty at the present stage of the extradition process. Hence, the constitutional right to due process particularly the right to be heard finds no application. To grant private respondent's request for copies of the extradition documents and for an opportunity to comment thereon will constitute "over-due process" and unnecessarily delay the proceedings. Wherefore I grant the petition. STRONGHOLD INSURANCE CO., INC., petitioner, vs. COURT OF APPEALS, respondent. Gascon, Garcia & Associates for petitioner. Castillo, Laman, Tan & Pantaleon for Northern Motors, Inc. In this petition for review on certiorari, petitioner Stronghold Insurance Co., Inc. assails the decision * of the Court of Appeals in CA-G.R. CV No. 16154 affirming the order of the Regional Trial Court, Branch 167, Pasig, Metro Manila in its Civil Case No. 52177. The dispositive portion of this order of the Trial court reads: WHEREFORE, in view of the foregoing consideration, the claim of the defendant against SICI Bond No. 11652 of the Stronghold Insurance Company, Inc. is found to have been established and said surety company is adjudged liable for damages suffered by the defendant as found by this Court in its decision dated June 9, 1986, to the extent of the amount of the replevin bond, which is P42,000.00 (p. 20, Rollo) The factual antecedents are not disputed.

On March 21, 1985, Leisure Club, Inc. filed Civil Case No. 52177 against Northern Motors Inc. for replevin and damages. It sought the recovery of certain office furnitures and equipments. In an order dated March 22, 1985, the lower court ordered the delivery of subject properties to Leisure Club Inc. subject to the posting of the requisite bond under Section 2, Rule 60 of the Rules of Court. Accordingly, Leisure Club Inc. posted a replevin bond (SICI Bond No. 11652) dated March 25, 1985 in the amount of P42,000.00 issued by Stronghold Insurance Co., Inc. In due course, the lower court issued the writ of replevin, thereby enabling Leisure Club Inc. to take possession of the disputed properties. Northern Motors Inc. filed a counterbond for the release of the disputed properties. However, efforts to recover these properties proved futile as Leisure Club Inc. was never heard of again. For failure to appear in the pre-trial of the case, Leisure Club, Inc. was declared non-suited. Northern Motors Inc. presented its evidence ex-parte and on June 9, 1986, the lower court rendered its decision in favor of Northern Motors Inc., the dispositive portion of which reads PREMISE CONSIDERED, the instant petition is hereby dismissed and on the counterclaim, plaintiff is ordered to pay defendant the following: a) the actual value of the property sold at public auction by defendant, and repossessed by plaintiff, of P20,900.00; b) exemplary damages of P10,000.00; c) attorney's fees in the amount of P10,000.00; and d) costs of suit. SO ORDERED. (p. 21, Rollo) In the said decision, the lower court ruled that: 1. Northern Motors Inc. had rightful ownership and right of possession over the subject properties. 2. Leisure Club Inc. is a sister company of Macronics Inc., a debtor of Northern Motors Inc., and former owner of these properties. 3) Under the circumstances, Leisure Club Inc. instituted the action for replevin as part of a scheme to spirit away these properties and pave the way for the evasion of lawful obligations by its sister company. (Decision dated June 4, 1986, p. 4). On July 3, 1986, Northern Motors Inc. filed a "Motion for Issuance of Writ of Execution Against Bond of Plaintiff's Surety", pursuant to Section 10, Rule 20 of the Rules of Court, which was treated by the lower court as an application for damages against the replevin bond. At the hearing of the said motion as well as the opposition thereto filed by Stronghold Insurance Co., Inc., Northern Motors Inc. presented one witness in the person of its former manager Clarissa G. Ocampo, whose testimony proved that: (a) Northern Motors Inc., and Macronics Marketing entered into a leased agreement wherein the latter leased certain premises from the former. (b) Macronics failed to pay its bills to Northern Motors Inc., so the latter was forced to terminate the lease.

(c) Because of Macronics' unpaid liabilities to Northern Motors Inc., the latter was forced to sell off the former's properties in an auction sale wherein Northern Motors Inc. was the buyer. Macronics was duly notified of the sale. (d) These properties sold were the sole means available by which Northern Motors Inc. could enforce its claim against Macronics. (TSN dated January 30, 1987; pp. 94-95, Rollo) Stronghold Insurance Co., Inc. did not cross-examine the said witness. Instead it asked for continuance in order to present its own witness. Stronghold, however, never presented any witness. On July 21, 1987, the lower court issued its now disputed Order finding Stronghold liable under its surety bond for the damages awarded to Northern Motors Inc. in the June 8, 1986 Decision. In the said Order, the lower court held: Submitted for resolution is the "Motion for Issuance of Writ of Execution Against Bond of Plaintiff's Surety" filed by the defendant and the opposition thereto filed by the Stronghold Insurance Company, Inc. In the decision rendered by the Court on June 9, 1977, the defendant Northern Motors, Inc. was the prevailling party and the judgment in its favor ordered the plaintiff to pay the actual value of the property sold at public auction by the defendant and repossessed by plaintiff in the amount of P20,900.00, which is in favor of the plaintiff if the latter is found not entitled to the writ of replevin earlier issued against the defendant. The thrust of the opposition of the bonding company is to the effect that the motion for a writ of execution is not the proper remedy but an application against the bond should have been the remedy pursued. The surety company contends that it is not a party to the case and that the decision clearly became final and executory and, therefore, is no longer liable on the bond. The surety company likewise raised the issue as to when the decision became final and executory. Moreover, the surety company avers that the defendant failed to prove any damage by reason of the insurance of replevin bond. Sec. 20 of Rule 57, in relation to Sec. 10 of Rule 60, provides that the party against whom the bond was issued may recover on the bond for any damage resulting from the issuance of the bond upon application and hearing. The application must be filed either: before trial; before appeal is perfected; before judgment becomes final and executory. Being the prevailing party, it is undeniable that the defendant is entitled to recover against the bond. The application for that propose was made before the decision became final and before the appeal was perfected. Both the prevailing and losing parties may appeal the decision. In the case of the plaintiff appears that its counsel did not claim the decision which was sent by registered mail on June 20, 1986 and filed the motion for execution against the bond on July 3, 1986. Hence, with respect to the defendant the motion against the bond was filed before any appeal was instituted and definitely on or before the judgment became final. Although the claim against the bond was denominated as a motion for issuance of a writ of execution, the allegations are to the effect that the defendant is applying for damages against the bond. In fact, the defendant invokes Sec. 10, Rule 60, in relation to Sec. 20, Rule 57, Rules of Court. Evidently, therefore, the defendant is in reality claiming damages against the bond. It is undisputed that the replevin bond was obtained by the plaintiff to answer for whatever damages the defendant may suffer for the wrongful issuance of the writ. By virtue of the

writ, the plaintiff took possession of the auctioned properties. Despite a redelivery bond issued by the defendant, the plaintiff refused to return the properties and in the fact repossessed the same. Clearly, defendant suffered damages by reason of the wrongful replevin, in that it has been deprived of the properties upon which it was entitled to enforce its claim. Moreover, the extent of the damages has been qualified in the decision dated June 9, 1986. (pp. 21-23, Rollo) This Order was appealed by Stronghold to the Court of Appeals. In a decision dated July 7, 1989, the Court of Appeals affirmed the order of the lower court. This decision is now the subject of the instant petition. Petitioner raises the following assignment of error: 1. The lower court erred in awarding damages against herein petitioner despite complete absence of evidence in support of the application. 2. The lower court erred in just adopting the dispositive portion of the decision dated June 7, 1986 as basis for the award of damages against herein petitioner. 3. The lower court erred in awarding exemplary damages in favor of Northern Motors, Inc. and against petitioner Stronghold Insurance Co., Inc. 4. The lower court erred in awarding the attorney's fees of P10,000.00 as damages against the bond. (pp. 10-11, Rollo) We find no merit in the petition. In the case of Visayan Surety & Insurance Corp. vs. Pascual, 85 Phil. 779, the Court explained the nature of the proceedings to recover damages against a surety, in this wise: In such case, upon application of the prevailing party, the court must order the surety to show cause why the bond should not respond for the judgment of damages. If the surety should contest the reality or reasonableness of the damages claimed by the prevailing party, the court must set the application and answer for hearing. The hearing will be summary and will be limited to such new defense, not previously set up by the principal, as the surety may allege and offer to prove. (Id. at 785; emphasis supplied) (p. 96, Rollo) Stronghold Insurance Co., Inc., never denied that it issued a replevin bond. Under the terms of the said bond, Stronghold Insurance together with Leisure Club Inc. solidarily bound themselves in the sum of P42,000 (a) for the prosecution of the action, (b) for the return of the property to the defendant if the return thereof be adjudged, and (c) for the payment of such sum as may in the cause be recovered against the plaintiff and the costs of the action. In the case at bar, all the necessary conditions for proceeding against the bond are present, to wit:

(i) the plaintiff a quo, in bad faith, failed to prosecute the action, and after relieving the property, it promptly disappeared; (ii) the subject property disappeared with the plaintiff, despite a court order for their return; and (iii) a reasonable sum was adjudged to be due to respondent, by way of actual and exemplary damages, attorney's fees and costs of suit. (p. 63, Rollo) On the propriety of the award for damages and attorney's fees, suffice it to state, that as correctly observed by the Court of Appeals, the record shows that the same is supported by sufficient evidence. Northern Motors proved the damages it suffered thru evidence presented in the hearing of the case itself and in the hearing of its motion for execution against the replevin bond. No evidence to the contrary was presented by Stronghold Insurance Co., Inc. in its behalf. It did not impugn said award of exemplary damages and attorney's fees despite having every opportunity to do so. As correctly held by respondent Court of Appeals Stronghold Insurance, Inc. has no ground to assail the awards against it in the disputed Order. Unless it has a new defense, it cannot simplistically dissociate itself from Leisure Club, Inc. and disclaim liability vis-a-vis the findings made in the Decision of the lower court dated June 9, 1986. Under Section 2, Rule 60 the bond it filed is to ensure "the return of the property to the defendant if the return thereof be adjudged, and for the payment to the defendant of such sum as he may recover from the plaintiff in the action." The bond itself ensures, inter alia, "the payment of such sum as may in the cause be recovered against the plaintiff and the cost of the action." (pp. 24-25, Rollo) Beside, Leisure Club Inc.'s act of filing a replevin suit without the intention of prosecuting the same but for the mere purpose of disappearing with the provisionally recovered property in order to evade lawfully contracted obligations constitutes a wanton, fraudulent, reckless, oppressive and malevolent breach of contract which justifies award of exemplary damages under Art. 2232 of the Civil Code. The attorney's fees awarded in favor of Northern Motors Inc. are likewise warranted under Article 2208 of the New Civil Code. In any event, the trial court has decided with finality that the circumstances justifying the award of exemplary damages and attorney's fees exist. The obligation of Stronghold Insurance Co., Inc., under the bond is specific. It assures "the payment of such sum as may in the cause be recovered against the plaintiff, and the costs of the action." (emphasis supplied) WHEREFORE, the petition is DENIED for lack of merit. No costs. SO ORDERED.