STATUTORY CONSTRUCTION WEEK 2:

I. WHAT IS A STATUTE?
a. DEFINITION
 a written law passed by a legislative body.
 a formal written enactment of a legislative authority that governs the legal entities of a city,
state, or country by way of consent.
b. PARTS OF A STATUTE
 Title
 The title of the statute is the heading on the preliminary part, furnishing the name by
which the act is individually known.
 Preamble
 That part of the statute explaining the reasons for its enactment and the objects
sought to be accomplished.
 Enacting Clause
 That part of the statute which declares its enactment and serves to identify it is an
act of legislation proceeding from the proper legislative authority.
 Body
 The main and operative part of the statute containing its substantive and even
procedural provisions. Provisos and exemptions may also be found in the body of the
statute.
 Repealing Clause
 That part of the statute which announces the prior statutes or specific provisions
which have been abrogated by reason of the new law.
 Saving Clause
 a restriction in a repealing act, which is intended to save rights, pending
proceedings, penalties, etc., from the annihilation which would result from an
unrestricted repeal.
 Separability Clause
 That part of the statute which provides that in the event that one or more provisions
are declared void or unconstitutional, the remaining provisions shall still be in force
and effect.
 Effectivity Clause
 That part of the Statute which announces the effective date of the law

c. KINDS OF STATUTE
 General Law
 is one that affects the community at large. A law that relates to a subject of a
general nature, or that affects all people of the state or all of a particular class.
 Special Law
 is one which is different from others of the same general kind, designed for a
particular purpose, limited in range, or confined to a prescribed field of action on
operation.

 Local Laws
 are those which relates or operates over a particular locality.
 Public Laws
 consist of constitutional, administrative, criminal and international law, concerned
with the organization of the State, the relations between the people and the state,
the responsibilities of public officers to the state, and the relations of states with one
another.
 Private Laws
 are those which defines, regulates, enforces, and administers relationships among
individuals, associations and corporations.
 Remedial Statutes
 are those which refer to the method of enforcing rights or of obtaining redress of
their invasion. It can be made to applicable to cases pending at the time of its
enactment.
 Curative Statutes
 are those which undertake to cure errors and irregularities, thereby validating
judicial or administrative proceedings, acts of public officers, or private deeds and
contracts which otherwise would not produce their intended consequences by reason
of some statutory disability or failure to comply with some technical requirement.
They operate on conditions already existing, and are necessarily retroactive in
operation. Curative statutes are "healing acts x x x curing defects and adding to the
means of enforcing existing obligations xx x (and) are intended to supply defects,
abridge superfluities in existing laws, and curb certain evils x x x By their very
nature, curative statutes are retroactive x x x (and) reach back to past events to
correct errors or irregularities and to render valid and effective attempted acts which
would be otherwise ineffective for the purpose the parties intended.
 Penal Statutes

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  are those which defines criminal offenses and specify corresponding fines and
punishments. It is enacted to preserve the public order, which defines an offense
against the public and inflicts a penalty for its violation.
 Prospective Laws
 are those which applies only to acts or omissions committed after its enactment.
 Retrospective Laws
 are those which look backwards or contemplates the past. Laws which are made to
affect acts or facts occurring, or rights occurring, before it came into force.
 Affirmative Statutes
 are those couched in affirmative or mandatory terms. One which directs the doing of
an act or declares what should be done.
 Mandatory Statutes
 are those which require, and not merely permit, a course of action.

II. CONSTITUTIONAL LIMITATIONS OF STATUTES

a. No ex post facto law or bill of attainer shall be enacted
b. Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title
thereof.
c. No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be
allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in
the Journal.
d. Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he
approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections
to the House where it originated, which shall enter the objections at large in its Journal and proceed to
reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to
pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise
be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law.
In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the
Members voting for or against shall be entered in its Journal. The President shall communicate his veto
of any bill to the House where it originated within thirty days after the date of receipt thereof;
otherwise, it shall become a law as if he had signed it.

III. LEGISLATIVE AND OTHER POWERS OF CONGRESS

a. Powers of the United States Congress are implemented by the United States Constitution, defined by
rulings of the Supreme Court, and by its own efforts and by other factors such as history and custom. It
is the chief legislative body of the United States. Some powers are explicitly defined by the
Constitution and are called enumerated powers; others have been assumed to exist and are called
implied powers.
b. At its creation in 1789, the legislative branch was the most innovative.
c. Rule by kings and emperors was an old style of government, and the legislature in many ways
represented the new. Almost certainly, the founders intended Congress to have more important
powers than the President and the Supreme Court. However, they placed many checks and balances
on the legislature that have prevented absolute power in the hands of one branch. Founders controlled
power not only by checks from the other branches, but by creating a bicameral, or two house,
Congress — the SENATE and the HOUSE OF REPRESENTATIVES. The powers of Congress, then, are
both constitutional and evolutionary.
d. The Constitution specifically grants Congress its most important power — the authority to make laws.
A BILL, or proposed law, only becomes a law after both the House of Representatives and the Senate
have approved it in the same form. The two houses share other powers, many of which are listed in
Article I, Section 8. These include the power to declare war, coin money, raise an army and navy,
regulate commerce, establish rules of immigration and naturalization, and establish the federal courts
and their jurisdictions.

IV. LEGISLATIVE PROCESS

a. HOW A BILL BECOMES A LAW
 PREPARATION OF THE BILL
 The Member or the Bill Drafting Division of the Reference and Research Bureau
prepares and drafts the bill upon the Member's request.
 FIRST READING
 The bill is filed with the Bills and Index Service and the same is numbered and
reproduced.
 Three days after its filing, the same is included in the Order of Business for First
Reading.
 On First Reading, the Secretary General reads the title and number of the bill. The
Speaker refers the bill to the appropriate Committee/s.
 COMMITTEE CONSIDERATION/ACTION

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  The Committee where the bill was referred to evaluates it to determine the necessity
of conducting public hearings.
 If the Committee finds it necessary to conduct public hearings, it schedules the time
thereof, issues public notics and invites resource persons from the public and private
sectors, the academe and experts on the proposed legislation.
 If the Committee finds that no public hearing is not needed, it schedules the bill for
Committee discussion/s.
 Based on the result of the public hearings or Committee discussions, the Committee
may introduce amendments, consolidate bills on the same subject matter, or
propose a subsitute bill. It then prepares the corresponding committee report.
 The Committee approves the Committee Report and formally transmits the same to
the Plenary Affairs Bureau.
 SECOND READING
 The Committee Report is registered and numbered by the Bills and Index Service. It
is included in the Order of Business and referred to the Committee on Rules.
 The Committee on Rules schedules the bill for consideration on Second Reading.
 On Second Reading, the Secretary General reads the number, title and text of the bill
and the following takes place:
 Period of Sponsorship and Debate
 Period of Amendments
 Voting which may be by:
a. viva voce
b. count by tellers
c. division of the House; or
d. nominal voting
 THIRD READING
 The amendments, if any, are engrossed and printed copies of the bill are reproduced
for Third Reading.
 The engrossed bill is included in the Calendar of Bills for Third Reading and copies of
the same are distributed to all the Members three days before its Third Reading.
 On Third Reading, the Secretary General reads only the number and title of the bill.
 A roll call or nominal voting is called and a Member, if he desires, is given three
minutes to explain his vote. No amendment on the bill is allowed at this stage.
 The bill is approved by an affirmative vote of a majority of the Members present.
 If the bill is disapproved, the same is transmitted to the Archives.
 TRANSMITTAL OF THE APPROVED BILL TO THE SENATE
 The approved bill is transmitted to the Senate for its concurrence.
 SENATE ACTION ON APPROVED BILL OF THE HOUSE
 The bill undergoes the same legislative process in the Senate.
 CONFERENCE COMMITTEE
 A Conference Committee is constituted and is composed of Members from each
House of Congress to settle, reconcile or thresh out differences or disagreements on
any provision of the bill.
 The conferees are not limited to reconciling the differences in the bill but may
introduce new provisions germane to the subject matter or may report out an
entirely new bill on the subject.
 The Conference Committee prepares a report to be signed by all the conferees and
the Chairman.
 The Conference Committee Report is submitted for consideration/approval of both
Houses. No amendment is allowed.
 TRANSMITTAL OF THE BILL TO THE PRESIDENT
 Copies of the bill, signed by the Senate President and the Speaker of the House of
Representatives and certified by both the Secretary of the Senate and the Secretary
General of the House, are transmitted to the President.
 PRESIDENTIAL ACTION ON THE BILL
 If the bill is approved the President, the same is assigned an RA number and
transmitted to the House where it originated.
 If the bill is vetoed, the same, together with a message citing the reason for the
veto, is transmitted to the House where the bill originated.
 ACTION ON APPROVED BILL
 The bill is reproduced and copies are sent to the Official Gasette Office for
publication and distribution to the implementing agencies. It is then included in the
annual compilation of Acts and Resolutions.
 ACTION ON VETOED BILL
 The message is included in the Order of Business. If the Congress decides to override
the veto, the House and the Senate shall proceed separately to reconsider the bill or
the vetoed items of the bill. If the bill or its vetoed items is passed by a vote of two-
thirds of the Members of each House, such bill or items shall become a law.
b. Period of Amendments
 Taxwise or Otherwise
 By Noelie Kristine M. Tagle, 3 March 2016
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  The 1997 National Internal Revenue Code requires that the assessment and
collection of internal revenue taxes be done only within a limited period. Generally,
the Bureau of Internal Revenue (BIR) must assess and collect any deficiency national
tax within three (3) years from the prescribed date for filing tax returns or the date
of actual filling, whichever is later.
 Our tax law also provides that once a tax return is filed, it cannot be withdrawn.
Nonetheless, taxpayers are allowed to modify, change or amend the return within
three years from the date of filing, provided that the taxpayer has not received any
notice for audit or investigation of such return from the BIR.
 Thus, the three-year statute of limitations for the BIR to issue an assessment on any
tax return is reckoned from whichever is the later date between: (1) the deadline for
filing, or (2) the date of actual filing, whether it is an original return or an amended
one.
 In Revenue Memorandum Circular No. 50-13 covering the filing of “tentative” annual
income tax returns (ITRs), the BIR applied the above rules when it clarified that ITRs
filed by taxpayers shall be considered as final returns, unless a final amended return
is filed. However, taxpayers are precluded from amending the filed tax returns once
they receive a notice of audit (e.g., Letter of Authority).
 The BIR circular also categorically states that the filing of amended tax returns has
the effect of extending the three-year period within which the BIR is allowed to
examine the taxpayer’s books of accounts and accounting records. It does not
provide for any qualification as to the extent of the amendments to the tax returns
to affect the extension of the prescriptive period.
 The courts, however, require that the returns be substantially modified before it will
affect the counting of the three-year prescriptive period to assess the taxpayer’s
internal revenue tax liabilities.
 Finding support in a Supreme Court ruling, the Court of Tax Appeals (CTA), in a 23
November 2015 decision, held that the statute of limitations should be counted from
the date the amended return was filed only if the changes thereon are substantial.
 So the question is -- how substantial is “substantial”?
 In that decision, the CTA did not set out any express guidelines on how to determine
what constitutes a substantial amendment. In deciding on each of the relevant
amended returns, the court decided as follows:
 The change in the amount of minimum corporate income tax was not deemed
substantial because the higher regular corporate income tax was used in the
computation of tax payable;
 Revision in the number of attached pages is not substantial;
 The change in the amount to be paid, which was based merely on the reflection of
payment accompanied by the filing of the original return, is likewise insubstantial;
and
 The 2.7% increase in the total amount of tax due as a result of increased income is
considered substantial change.

 SENATE ACTION ON APPROVED BILL OF THE HOUSE

 The bill undergoes the same legislative process in the Senate- An idea is developed.
 A legislator – either a Representative or a Senator – decides to sponsor a bill. This
could be an original idea, or it could come as a suggestion from a constituent, an
interest group, a public official, or the Governor. Other lawmakers may be asked to
join as co-sponsors. The co-sponsors may or may not be of the same political party
as the sponsor.
 A bill is drafted. At the sponsoring legislator’s direction, the nonpartisan Legislative
Services Agency (LSA) provides research and
 drafting assistance. LSA prepares the bill in proper technical form.
 The bill is introduced.
 The bill is filed by the legislator in her/his own chamber, which could be either the
Senate or the House of
 Representatives. If the chamber leadership does not call the bill for First Reading, it
“dies.” If the bill is called, it is scheduled for First Reading.
 The bill has its First Reading in the house of origin. The bill is read by title for the first
time to the full legislative
 body.

 CONFERENCE COMMITTEE
 A Conference Committee is constituted and is composed of Members from each
House of Congress to settle, reconcile or thresh out differences or disagreements on
any provision of the bill.
 The conferees are not limited to reconciling the differences in the bill but may
introduce new provisions germane to the subject matter or may report out an
entirely new bill on the subject.
 The Conference Committee prepares a report to be signed by all the conferees and
the Chairman.

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  The Conference Committee Report is submitted for consideration/approval of both
Houses. No amendment is allowed.
 TRANSMITTAL OF THE BILL TO THE PRESIDENT
a. Copies of the bill, signed by the Senate President and the Speaker of the
House of Representatives and certified by both the Secretary of the Senate
and the Secretary General of the House, are transmitted to the President.

c. FLOW CHART OF PROCESS

V. EVIDENCE OF DUE ENACTMENT

a. ENROLLED BILL THEORY
 The final copy of a bill or joint resolution that has passed both houses of a legislature and is
ready for signature. In legislative practice, a bill that has been duly introduced, finally passed
by both houses, signed by the proper officers of each, approved by the governor (or
president), and filed by the Secretary of State.
 Under the enrolled bill rule, once an election for the adoption of a statute is held, the
procedural method by which the measure was placed on the ballot cannot be challenged with
a lawsuit since judicial inquiry into legislative procedure is barred as an intrusion into the
internal affairs of the lawmaking body. In addition, this rule enhances the stability of statutory
enactments. Citizens can reasonably rely on the legality of filed enactments. As a result, an
enrolled bill is the most authoritative source of statutory law in a jurisdiction.
 THE ENROLLED BILL THEORY
 This theory is amply discussed in the memoranda of the parties attached hereto as
Appendices A, B, and C. Although we consider it unnecessary to enlarge the
discussion, we deem it convenient to make a little analysis of what is stated in the
majority opinion. Respondents contend, with the full approval of the majority, that a
duly authenticated bill or resolution imports absolute verity and is binding on the
courts.
 The present case is a conclusive evidence of the absurdity of the theory. How can we
accept the absolute verity of the presiding officers' certification that the resolution in
question has been adopted by three-fourths of all the members of the Senate and of
the House of Representatives, when as a matter of undisputable fact the certification
is false? How can we accept a theory which elevates a false-hood to the category of
truth?
 The majority alleges that the rule is the one prevailing in England. Because the
English have committed the nonsense of accepting the theory, is that reason for
Filipinos to follow suit? Why, in the administration of justice, should our tribunals not
think independently? Our temple of justice is not presided by simians trained in the
art of imitation but by human beings, and human beings must act according to
reason, never just to imitate what is wrong, although such mistakes may happen to
be consecrated as a judicial precedent. It would be inconceivable for our courts to
commit such a blunder.
 Repeating what Wigmore has said (4 Wigmore on Evidence, 685, footnote), the
majority states that in the United States the jurisdictions are divided almost equally
pro and con on the theory, although in petitioners' memorandum Appendix A there
appears more up-to-date evidence to the effect that there is a great majority for the
rejection. But to our mind, mere numbers as to pro and con seem to us immaterial in
the decision as to whether the theory is or is not correct. Numbers do not make
reason nor justice.

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  The majority contends that the theory conforms to the express policy of our law-
making body, invoking to said effect the now obsolete section 313 of the old Code of
Civil Procedure, as amended by Act No. 2210.
 Even if we should follow the anachronistic practice of deciding issues upon the
authority of laws which have been repealed or abolished, still the evidence pointed
out by the majority does not support their contention. Section 313 alluded to
enumerates the evidence that may prove the procedures of the defunct Philippine
Commission or of any legislative body that may be provided for in the Philippines,
with the proviso that the existence of a copy of acts of said commission or the
Philippine Legislature, signed by the presiding officers and secretaries of said bodies,
is a conclusive proof "of the provisions of such acts and of the due enactment
thereof."
 This proviso has been repealed by its non-inclusion in the Rules of Court. Sections 5
and 41 of Rule 123 show conclusively that this Supreme Court, in making the rules
effective since July 1, 1940, rejected the proviso as unreasonable and unjust. Section
5 provides that we may take judicial notice of the official acts of Congress and
section 41 provides what evidence can be used to prove said official acts, but
nowhere in the rules can a provision be found that would make conclusive a
certification by the presiding officers and secretaries of both House of Congress even
if we know by conclusive evidence that the certification is false.
 The allegation that the theory in question conforms to the express policy of our
lawmaking body, upon the very evidence used in support thereof, after a little
analysis, has to banish as a mid-summer night's dream. (MABANAG VS LOPEZ, 1947)
b. JOURNAL ENTRY RULE
 In accord with a majority of jurisdictions, Louisiana mandates constitutionally that each house
keep and publish a journal, a chronological record of the body's daily proceedings." The Clerk
of the House of Representatives and the Secretary of the Senate are charged with the
responsibility for entering all proceedings "in the Journal as concisely as possible,"' taking
care "to detail a true and accurate account proceedings."' In Louisiana most requirements
regarding journal content and form are provided by house rule. However, the journals are not
detailed or verbatim records, but are merely "bare-bones" accounts of all matters coming
before the house and of action thereon. Daily copies of the journal are distributed to all
legislators,' and copies also are available to the public." Reading and correction of the daily
journal are provided by rule," with final responsibility for accuracy, coupled with authority to
make corrections where necessary, being vested in the clerk and secretary respectively.' The
official legislative journal for each session consists of the bound printed compilation of all duly
corrected daily journals." The journal entry rule, where adopted, provides that "courts may
have recourse to journals of either house of the legislature for ascertaining whether a law has
in fact been passed in accordance with constitutional requirements"" and that the "journals
import absolute verity.""
 This rule has taken a variety of forms. Three general categories have been delineated: 1) the
"pure" journal entry rule," a conclusive presumption that the enrolled bill is valid only if it is in
accordance with procedures recorded in the journal and the constitution; 2) the "affirmative
contradiction" rule, 9 a determination that the enrolled bill is valid unless the journals
affirmatively show a statement that there has not been compliance with constitutional
requirements; and 3) the "extrinsic evidence" rule," a prima facie presumption of validity to
the enrolled bill, permitting attacks by evidence from the journal or other extrinsic sources to
establish non-compliance with constitutional mandates.
 The journal entry rule, as modified and applied, appears to provide a compromise between
unlimited judicial oversight of enactment procedures and no oversight at all. Legislative
stability is not undermined by limiting judicial inquiry to the journal, attendant with the
presumption that all procedures were duly complied with absent affirmative evidence to the
contrary. Furthermore, protection from abuse of power is provided by preventing the
legislature from ignoring constitutional requirements.
c. BOTH
 In the Astorga v Villegas case, the SC, by way of obiter, indicated that the journal might really
prevail over the enrolled bill, since a journal is required by the Constitution while the
enrollment of a bill is just a legislative practice that is not even mentioned in the Constitution.
Further, enrollment does not add to the validity of the bill, for what makes it valid are the
votes of the members. But this view is mere dictum. It contradicts the ruling in Morales v
Subido that the enrolled copy prevails over the journal. It also contradicts the ratio in Marshall
Field & Co. v Clark, 143 US 649 (1891) that the parties were not competent to show from the
journal that the bill in the custody of the Secretary of State was against the contents of the
journal, because journals are just kept by clerks who could be mistaken, while the certified bill
is made by the highest officer of the chamber. To reconcile these two views, it may be said
that, as to matters required by the Constitution to be placed in the journal, the journal is
conclusive. But aside from these 4 matters, any other matter does not enjoy such
conclusiveness. [Astorga v Villegas, 56 SCRA 714 (1974)]

G.R. No. L-23475 April 30, 1974

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HERMINIO A. ASTORGA, in his capacity as Vice-Mayor of Manila, petitioner, 
vs.
ANTONIO J. VILLEGAS, in his capacity as Mayor of Manila, THE HON., THE EXECUTIVE SECRETARY,
ABELARDO SUBIDO, in his capacity as Commissioner of Civil Service, EDUARDO QUINTOS, in his
capacity as Chief of Police of Manila, MANUEL CUDIAMAT, in his capacity as City Treasurer of Manila,
CITY OF MANILA, JOSE SEMBRANO, FRANCISCO GATMAITAN, MARTIN ISIDRO, CESAR LUCERO, PADERES
TINOCO, LEONARDO FUGOSO, FRANCIS YUSECO, APOLONIO GENER, AMBROCIO LORENZO, JR., ALFONSO
MENDOZA, JR., SERGIO LOYOLA, GERINO TOLENTINO, MARIANO MAGSALIN, EDUARDO QUINTOS, JR.,
AVELINO VILLACORTA, PABLO OCAMPO, FELICISIMO CABIGAO, JOSE BRILLANTES, JOSE VILLANUEVA and
MARINA FRANCISCO, in their capacities as members of the Municipal Board, respondents.

Artemio V. Panganiban and Renito V. Saguisag and Crispin D. Baizas and Associates for petitioner.

Paredes Poblador, Cruz and Nazareno and Antonio Barredo for respondent Mayor of Manila.

Romeo L. Kahayon for respondents City Treasurer of Manila, etc., et al.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro, Solicitor Jorge R.
Coquia and Solicitor Ricardo L. Pronove, Jr. for respondents The Executive Secretary and Commissioner of Civil
Service.

Fortunato de Leon and Antonio V. Raquiza as amici curiae.

MAKALINTAL, C.J.:p

The present controversy revolves around the passage of House Bill No. 9266, which became Republic Act 4065, "An
Act Defining the Powers, Rights and Duties of the Vice-Mayor of the City of Manila, Further Amending for the
Purpose Sections Ten and Eleven of Republic Act Numbered Four Hundred Nine, as Amended, Otherwise Known as
the Revised Charter of the City of Manila."

The facts as set forth in the pleadings appear undisputed:

On March 30, 1964 House Bill No. 9266, a bill of local application, was filed in the House of Representatives. It was
there passed on third reading without amendments on April 21, 1964. Forthwith the bill was sent to the Senate for
its concurrence. It was referred to the Senate Committee on Provinces and Municipal Governments and Cities
headed by Senator Gerardo M. Roxas. The committee favorably recommended approval with a minor amendment,
suggested by Senator Roxas, that instead of the City Engineer it be the President Protempore of the Municipal Board
who should succeed the Vice-Mayor in case of the latter's incapacity to act as Mayor.

When the bill was discussed on the floor of the Senate on second reading on May 20, 1964, substantial amendments
to Section 11 were introduced by Senator Arturo Tolentino. Those amendments were approved in toto by the
Senate. The amendment recommended by Senator Roxas does not appear in the journal of the Senate proceedings
as having been acted upon.

On May 21, 1964 the Secretary of the Senate sent a letter to the House of Representatives that House Bill No. 9266
had been passed by the Senate on May 20, 1964 "with amendments." Attached to the letter was a certification of
the amendment, which was the one recommended by Senator Roxas and not the Tolentino amendments which
were the ones actually approved by the Senate. The House of Representatives thereafter signified its approval of
House Bill No. 9266 as sent back to it, and copies thereof were caused to be printed. The printed copies were then
certified and attested by the Secretary of the House of Representatives, the Speaker of the House of
Representatives, the Secretary of the Senate and the Senate President. On June 16, 1964 the Secretary of the
House transmitted four printed copies of the bill to the President of the Philippines, who affixed his signatures
thereto by way of approval on June 18, 1964. The bill thereupon became Republic Act No. 4065.

The furor over the Act which ensued as a result of the public denunciation mounted by respondent City Mayor drew
immediate reaction from Senator Tolentino, who on July 5, 1964 issued a press statement that the enrolled copy of
House Bill No. 9266 signed into law by the President of the Philippines was a wrong version of the bill actually
passed by the Senate because it did not embody the amendments introduced by him and approved on the Senate
floor. As a consequence the Senate President, through the Secretary of the Senate, addressed a letter dated July 11,
1964 to the President of the Philippines, explaining that the enrolled copy of House Bill No. 9266 signed by the
secretaries of both Houses as well as by the presiding officers thereof was not the bill duly approved by Congress
and that he considered his signature on the enrolled bill as invalid and of no effect. A subsequent letter dated July
21, 1964 made the further clarification that the invalidation by the Senate President of his signature meant that the
bill on which his signature appeared had never been approved by the Senate and therefore the fact that he and the
Senate Secretary had signed it did not make the bill a valid enactment.

On July 31, 1964 the President of the Philippines sent a message to the presiding officers of both Houses of
Congress informing them that in view of the circumstances he was officially withdrawing his signature on House Bill
No. 9266 (which had been returned to the Senate the previous July 3), adding that "it would be untenable and
against public policy to convert into law what was not actually approved by the two Houses of Congress."
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Upon the foregoing facts the Mayor of Manila, Antonio Villegas, issued circulars to the department heads and chiefs
of offices of the city government as well as to the owners, operators and/or managers of business establishments in
Manila to disregard the provisions of Republic Act 4065. He likewise issued an order to the Chief of Police to recall
five members of the city police force who had been assigned to the Vice-Mayor presumably under authority of
Republic Act 4065.

Reacting to these steps taken by Mayor Villegas, the then Vice-Mayor, Herminio A. Astorga, filed a petition with this
Court on September 7, 1964 for "Mandamus, Injunction and/or Prohibition with Preliminary Mandatory and
Prohibitory Injunction" to compel respondents Mayor of Manila, the Executive Secretary, the Commissioner of Civil
Service, the Manila Chief of Police, the Manila City Treasurer and the members of the municipal board to comply
with the provisions of Republic Act 4065.

Respondents' position is that the so-called Republic Act 4065 never became law since it was not the bill actually
passed by the Senate, and that the entries in the journal of that body and not the enrolled bill itself should be
decisive in the resolution of the issue.

On April 28, 1965, upon motion of respondent Mayor, who was then going abroad on an official trip, this Court
issued a restraining order, without bond, "enjoining the petitioner Vice-Mayor Herminio Astorga from exercising any
of the powers of an Acting Mayor purportedly conferred upon the Vice-Mayor of Manila under the so-called Republic
Act 4065 and not otherwise conferred upon said Vice-Mayor under any other law until further orders from this
Court."

The original petitioner, Herminio A. Astorga, has since been succeeded by others as Vice-Mayor of Manila. Attorneys
Fortunato de Leon and Antonio Raquiza, with previous leave of this Court, appeared as amici curiae, and have filed
extensive and highly enlightening memoranda on the issues raised by the parties.

Lengthy arguments, supported by copious citations of authorities, principally decisions of United States Federal and
State Courts, have been submitted on the question of whether the "enrolled bill" doctrine or the "journal entry" rule
should be adhered to in this jurisdiction. A similar question came up before this Court and elicited differing opinions
in the case of Mabanag, et al. vs. Lopez Vito, et al. (March 5, 1947), 78 Phil. Reports 1. While the majority of the
Court in that case applied the "enrolled bill" doctrine, it cannot be truly said that the question has been laid to rest
and that the decision therein constitutes a binding precedent.

The issue in that case was whether or not a resolution of both Houses of Congress proposing an amendment to the
(1935) Constitution to be appended as an ordinance thereto (the so-called parity rights provision) had been passed
by "a vote of three-fourths of all the members of the Senate and of the House of Representatives" pursuant to
Article XV of the Constitution.

The main opinion, delivered by Justice Pedro Tuason and concurred in by Justices Manuel V. Moran, Guillermo F.
Pablo and Jose M. Hontiveros, held that the case involved a political question which was not within the province of
the judiciary in view of the principle of separation of powers in our government. The "enrolled bill" theory was relied
upon merely to bolster the ruling on the jurisdictional question, the reasoning being that "if a political question
conclusively binds the judges out of respect to the political departments, a duly certified law or resolution also binds
the judges under the "enrolled bill rule" born of that respect."

Justice Cesar Bengzon wrote a separate opinion, concurred in by Justice Sabino Padilla, holding that the Court had
jurisdiction to resolve the question presented, and affirming categorically that "the enrolled copy of the resolution
and the legislative journals are conclusive upon us," specifically in view of Section 313 of Act 190, as amended by
Act No. 2210. This provision in the Rules of Evidence in the old Code of Civil Procedure appears indeed to be the
only statutory basis on which the "enrolled bill" theory rests. It reads:

The proceedings of the Philippine Commission, or of any legislative body that may be provided for in the Philippine
Islands, or of Congress (may be proved) by the journals of those bodies or of either house thereof, or by published
statutes or resolutions, or by copies certified by the clerk or secretary, printed by their order; provided, that in the
case of acts of the Philippine Commission or the Philippine Legislature, when there is in existence a copy signed by
the presiding officers and secretaries of said bodies, it shall be conclusive proof of the provisions of such acts and of
the due enactment thereof.

Congress devised its own system of authenticating bills duly approved by both Houses, namely, by the signatures of
their respective presiding officers and secretaries on the printed copy of the approved bill. 2 It has been held that this
procedure is merely a mode of authentication, 3 to signify to the Chief Executive that the bill being presented to him
has been duly approved by Congress and is ready for his approval or rejection. 4 The function of an attestation is
therefore not of approval, because a bill is considered approved after it has passed both Houses. Even where such
attestation is provided for in the Constitution authorities are divided as to whether or not the signatures are
mandatory such that their absence would render the statute invalid. 5 The affirmative view, it is pointed out, would
be in effect giving the presiding officers the power of veto, which in itself is a strong argument to the
contrary6 There is less reason to make the attestation a requisite for the validity of a bill where the Constitution
does not even provide that the presiding officers should sign the bill before it is submitted to the President.

In one case in the United States, where the (State)Constitution required the presiding officers to sign a bill and this
provision was deemed mandatory, the duly authenticated enrolled bill was considered as conclusive proof of its due
enactment.7 Another case however, under the same circumstances, held that the enrolled bill was not conclusive
evidence.8 But in the case of Field vs. Clark,9 the U.S. Supreme Court held that the signatures of the presiding

8
officers on a bill, although not required by the Constitution, is conclusive evidence of its passage. The authorities in
the United States are thus not unanimous on this point.

The rationale of the enrolled bill theory is set forth in the said case of Field vs. Clark as follows:

The signing by the Speaker of the House of Representatives, and, by the President of the Senate, in open session, of
an enrolled bill, is an official attestation by the two houses of such bill as one that has passed Congress. It is a
declaration by the two houses, through their presiding officers, to the President, that a bill, thus attested, has
received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in
obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when
a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that
has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve
a bill not passed by Congress, an enrolled Act in the custody of the Secretary of State, and having the official
attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of
the United States, carries, on its face, a solemn assurance by the legislative and executive departments of the
government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by
Congress. The respect due to coequal and independent departments requires the judicial department to act upon
that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving the
courts to determine, when the question properly arises, whether the Act, so authenticated, is in conformity with the
Constitution.

It may be noted that the enrolled bill theory is based mainly on "the respect due to coequal and independent
departments," which requires the judicial department "to accept, as having passed Congress, all bills authenticated
in the manner stated." Thus it has also been stated in other cases that if the attestation is absent and the same is
not required for the validity of a statute, the courts may resort to the journals and other records of Congress for
proof of its due enactment. This was the logical conclusion reached in a number of decisions, 10 although they are
silent as to whether the journals may still be resorted to if the attestation of the presiding officers is present.

The (1935) Constitution is silent as to what shall constitute proof of due enactment of a bill. It does not require the
presiding officers to certify to the same. But the said Constitution does contain the following provisions:

Sec. 10 (4). "Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting
such parts as may in its judgment require secrecy; and the yeas and nays on any question shall, at the request of
one-fifth of the Members present, be entered in the Journal."

Sec. 21 (2). "No bill shall be passed by either House unless it shall have been printed and copies thereof in its final
form furnished its Members at least three calendar days prior to its passage, except when the President shall have
certified to the necessity of its immediate enactment. Upon the last reading of a bill no amendment thereof shall be
allowed, and the question upon its passage shall be taken immediately thereafter, and the yeas and nays entered
on the Journal."

Petitioner's argument that the attestation of the presiding officers of Congress is conclusive proof of a bill's due
enactment, required, it is said, by the respect due to a co-equal department of the government, 11 is neutralized in
this case by the fact that the Senate President declared his signature on the bill to be invalid and issued a
subsequent clarification that the invalidation of his signature meant that the bill he had signed had never been
approved by the Senate. Obviously this declaration should be accorded even greater respect than the attestation it
invalidated, which it did for a reason that is undisputed in fact and indisputable in logic.

As far as Congress itself is concerned, there is nothing sacrosanct in the certification made by the presiding officers.
It is merely a mode of authentication. The lawmaking process in Congress ends when the bill is approved by both
Houses, and the certification does not add to the validity of the bill or cure any defect already present upon its
passage. In other words it is the approval by Congress and not the signatures of the presiding officers that is
essential. Thus the (1935) Constitution says that "[e] very bill passed by the Congress shall, before it becomes law,
be presented to the President. 12 In Brown vs. Morris, supra, the Supreme Court of Missouri, interpreting a similar
provision in the State Constitution, said that the same "makes it clear that the indispensable step is the final
passage and it follows that if a bill, otherwise fully enacted as a law, is not attested by the presiding officer, of the
proof that it has "passed both houses" will satisfy the constitutional requirement."

Petitioner agrees that the attestation in the bill is not mandatory but argues that the disclaimer thereof by the
Senate President, granting it to have been validly made, would only mean that there was no attestation at all, but
would not affect the validity of the statute. Hence, it is pointed out, Republic Act No. 4065 would remain valid and
binding. This argument begs the issue. It would limit the court's inquiry to the presence or absence of the
attestation and to the effect of its absence upon the validity of the statute. The inquiry, however, goes farther.
Absent such attestation as a result of the disclaimer, and consequently there being no enrolled bill to speak of, what
evidence is there to determine whether or not the bill had been duly enacted? In such a case the entries in the
journal should be consulted.

The journal of the proceedings of each House of Congress is no ordinary record. The Constitution requires it. While it
is true that the journal is not authenticated and is subject to the risks of misprinting and other errors, the point is
irrelevant in this case. This Court is merely asked to inquire whether the text of House Bill No. 9266 signed by the
Chief Executive was the same text passed by both Houses of Congress. Under the specific facts and circumstances
of this case, this Court can do this and resort to the Senate journal for the purpose. The journal discloses that
substantial and lengthy amendments were introduced on the floor and approved by the Senate but were not
incorporated in the printed text sent to the President and signed by him. This Court is not asked to incorporate such
9
 amendments into the alleged law, which admittedly is a risky undertaking, 13 but to declare that the bill was not duly
enacted and therefore did not become law. This We do, as indeed both the President of the Senate and the Chief
Executive did, when they withdrew their signatures therein. In the face of the manifest error committed and
subsequently rectified by the President of the Senate and by the Chief Executive, for this Court to perpetuate that
error by disregarding such rectification and holding that the erroneous bill has become law would be to sacrifice
truth to fiction and bring about mischievous consequences not intended by the law-making body.

In view of the foregoing considerations, the petition is denied and the so-called Republic Act No. 4065 entitled "AN
ACT DEFINING THE POWERS, RIGHTS AND DUTIES OF THE VICE-MAYOR OF THE CITY OF MANILA, FURTHER
AMENDING FOR THE PURPOSE SECTIONS TEN AND ELEVEN OF REPUBLIC ACT NUMBERED FOUR HUNDRED NINE, AS
AMENDED, OTHERWISE KNOWN AS THE REVISED CHARTER OF THE CITY OF MANILA" is declared not to have been
duly enacted and therefore did not become law. The temporary restraining order dated April 28, 1965 is hereby
made permanent. No pronouncement as to costs.

Castro, Teehankee, Antonio, Esguerra, Fernandez, Muñoz Palma and Aquino, JJ., concur.

Zaldivar (Chairman), Fernando and Barredo, JJ., took no part.

Makasiar, J., is on leave.

VI. VALIDITY OF LAWS

a. PRESUMPTION OF CONSTITUTIONALITY
 In constitutional law, the presumption of constitutionality is the legal principle that the
judiciary should presume statutes enacted by the legislature to be constitutional, unless the
law is clearly unconstitutional or a fundamental right is implicated.

b. CONSTITUTION, ARTICLE 8, SECTION 4

 COMPOSITION OF SUPREME COURT The Supreme Court shall composed of 15 members which
includes the Chief Justice (1) and 14 Associate Justices. The Constitution requires any vacancy
to be filled within 90 days from the concurrence thereof.

c. ALBA VS EVANGELISTA (100 PHIL, 683, 1957)

G.R. Nos. L-10360 and L-10433             January 17, 1957

JULIANO A. ALBA, in his capacity as Acting Vice Mayor of Roxas City, petitioner, 

vs.
HONORABLE JOSE D. EVANGELISTA, Judge of the Court of First Instance of Capiz and VIVENCIO C.
ALAJAR, respondents.

VIVENCIO C. ALAJAR, petitioner-appellee, 
vs.
JULIANO A. ALBA, respondent-appellant.

Nicolas V. Villaruz, Solicitor General Ambrosio Padilla and Solicitor Troadio Quiazon, Jr. for Juliano A. Alba.
Alvarez, Cacnio, Pamatian and Associates, Abeleda and Amores, Antonio J. Beldia, Pedro M. Bermejo, Jose M. F. Belo,
Atila R. Balgos and Alfonso V. Legaspi for Vivencio C. Alajar.

FELIX, J.:

On January 1, 1954, the President of the Philippines appointed Vivencio Alajar as Vice-Mayor of the City of Roxas (Annex
D). He took his oath and assumed office on January 6, 1954; on March 31 of that year, his appointment was confirmed by
the Commission on Appointment (Annex D-1) and he continued holding office until November, 1955, when he received a
communication from Assistant Executive Secretary Enrique C. Quema informing him that the President had designated
Juliano Alba in his stead as Acting Vice-Mayor of the City of Roxas and requesting him to turn over his said office to Mr.
Alba effective immediately. This communication wherein the President directed the writer thereof to convey to Mr. Alajar
his appreciation for the invaluable services he had rendered as Vice-Mayor of the City of Roxas (Annex C), was
confirmed by a telegram that Alajar received from the President dated November 23, 1955 (Annex B).

On the other hand, Executive Secretary Fred Ruiz Castro addressed Juliano A. Alba a communication through the Mayor
of the City of Roxas wherein Alba was informed that the President has designated him as Acting Vice-Mayor of the City of
Roxas vice Vivencio Alajar, and instructed him to qualify and enter upon the performance of the office, furnishing the
Commissioner of Civil Service with the copy of his oath (Annex A). On November 19, 1955, Juliano A. Alba took his oath
and assumed office (Annex A-1).

10
Not satisfied with the action of the President, Vivencio C. Alajar instituted quo warranto proceedings in the Court of First
Instance of Capiz against Juliano A. Alba (Civil Case No. V-2041), contending:

(a) That he was appointed Vice-Mayor of Roxas City on 1 January 1954 and his appointment was confirmed by
the Commission on Appointments on 31 March 1954 and that on 19 November 1955, Juliano A. Alba usurped
the office of Vice-Mayor of Roxas City;

(b) That there existed no vacancy of said office at the time of the designation by the President of the Philippines
of Juliano A. Alba as Acting Vice-Mayor of Roxas City; and

(c) That there existed no legal cause or reason whatsoever for the removal or disqualification of said Vivencio C.
Alajar by the appointment of Juliano Alba by the President of the Philippines as Acting Vice-Mayor of Roxas City.

After proper proceedings and hearing, the parties submitted the case for decision on the only issue of whether the
alleged removal of the petitioner and the designation in his place of respondent as Vice-Mayor of Roxas City was legal or
illegal. On this point, the lower court held that the petitioner (Vivencio C. Alajar) was "entitled to remain in office as Vice-
Mayor of the City of Roxas with all the emoluments, rights and privileges appurtenant thereto until he resigns, dies or is
removed for cause. Without costs." (Decision, Annex C).

From this decision, Juliano A. Alba appealed to Us by filing a notice of appeal dated February 3, 1956. Four days later,
the appeal notwithstanding, Vivencio Alajar filed a petition (Annex D) praying for immediate execution of the judgment,
and despite the strong opposition of appellant, the motion was granted by the Court on February 18, 1956 (Annex )E),
based on the special reasons adduced by the petitioner and

Moreover, to uphold the supremacy of the law and constitution, which is the supreme and fundamental
authority, pertinent provisions of which are involved in this case, and considering that the immediate and
positive effect of the motion, if the same is denied, is to prolong the status of the illegality of the appointment
of the second appointee and present incumbent to the position of Vice-Mayor of the City of Roxas and the
Question of who is entitled to occupy the same and to exercise the public function of the office which affects
public interest and public service, this Court, if it is to be consistent with its pronouncement, conclusion or
judgment, as it should be, is constrained to grant said motion.

The decision, however, was not executed because the herein petitioner, Juliano A. Alba, brought the matter up to this
Superiority praying:

(1) That pending the determination of the validity of the order of immediate execution, a writ of preliminary
injunction be issued, upon previous filing of the bond fixed by this Honorable Court by the herein petitioner,
restraining the herein respondent Vivencio C. Alajar from discharging the duties and functions of the Vice-Mayor
of Roxas City in order that the herein petitioner shall continue unmolested as acting Vice-Mayor of Roxas City
until the final determination of the question of the validity of the order for the immediate execution of the
decision of the trial court;

(2) That after hearing, judgment be rendered declaring null and void the order of respondent, Hon. Jose D.
Evangelista, dated 18 February 1956 for the immediate execution of his decision in the Quo Warranto Case
(Alajar vs. Alba) on the ground that the same was improperly issued as there existed no good reason for its
issuance as contemplated and provided by Section 2 of Rule 39 of the Rules of Court.

(3) For such other relief as may be just and equitable in the premises.

In this instance, the Solicitor General requested permission to intervene in the certiorari case (G.R. No. L-10360),
alleging that the order of immediate execution issued by the trial judge deprived him of the opportunity to be heard and
defend the constitutionality of Republic Act No. 603 in the lower court and he desire to heard by this Court before We
proceed to determine the constitutionality of section 8 of Republic Act No. 603 by the affirmative vote of 8 Justice
thereof (section 23, Rule 3 of the Rules of Court — I Moran, Comments on the Rules of Court, 1953 ed., p. 111). The
stand of the Solicitor General is that said section 8 is constitutional (Article VI, section 1 and Article XII, section 1 of the
Constitution of the Philippines; Jover vs. Borra, 49 Off. Gaz., 2765 and enactments of Congress subsequent to the case of
Santos vs. Mallare, 48 Off. Gaz., 1793, etc., declaring certain position to be terminable at the pleasure of the appointing
authority — section 2545 Revised Administrative Code; Commonwealth Act Nos. 39, 51, 520, 547 and 592; Republic Acts
Nos. 162, 170, as amended; 179, as amended; 183, 288, as amended; 305, 306, 327, 328, 521, 523, 525, as amended;
537, and 603) The motion for intervention of the Solicitor General was granted by this Court.

In the meanwhile, the appeal of Juliano A. Alba in said case V-2041, was given due course and reached this Court. In this
instance the parties have already filed their respective briefs and the case was submitted for decision at the hearing
held on August 3, 1956.

Appellant's counsel maintains that the trial Court erred:

1. In predicating its decision on the mistaken assumption that the petitioner-appellee belongs to the
unclassified civil service, an assumption which begs the very issue; whether the vice-mayor of Roxas City
belongs to the unclassified service as claimed by the petitioner-appellee;

11
 2. In not declaring without the necessity of making a pronouncement of its validity, that section 8 of Republic
Act 603 was precisely intended by the Congress to exclude the office of vice-mayor of Roxas City from persons
belonging to the unclassified service under section 671 of the Revised Administrative Code, as amended;

3. In not declaring that in the case of Jover vs. Borra (49 Off. Gaz., 2767) the Supreme Court passed upon the
validity of section 8 of Republic Act No. 603;

4. In holding that the office of vice-mayor of Roxas City is neither primarily confidential nor policy-determining,
and

5. In not holding that section 8 of Republic Act No. 603 is a valid exercise of the broad legislative powers vested
in the Congress of the Philippines by our Constitution.

As the petition for certiorari was admitted and given due course by this Court and the writ of preliminary injunction
prayed for was issued, We shall confine ourselves to the statement that appeal from a decision of the Court of First
Instance in quo warranto proceedings is perfected by the mere presentation of the notice of appeal (section 16 and 17,
Rule 41 of the Rules of Court), and from that moment "the trial court losses its jurisdiction over the case, except to issue
orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the
appeal, and to approve compromises offered by the parties prior to the transmittal of the record on appeal (which is not
required in cases of quo warranto) to the appellate court" (section 9, Rule 41 of the Rules of Court). Hence, in the case at
bar, the trial court had no jurisdiction to provide for the issuance of the writ for the advanced execution of its judgment,
as it did by order of February 18, 1956 (Annex E). Consequently, We have to declare that said order is null and void and
of no force and effect and to make permanent the writ of preliminary injunction We have issued at the instance of the
herein petitioner.

We will now consider the merits of respondent's appeal in case G.R. No. L-10433. The solution of the controversy hinges
on the main question at issue, which may be propounded as follows:

Section 8 of Republic Act No. 603 creating the City of Roxas provides that the Vice-Mayor shall be appointed by
the President of the Philippines with the consent of the Commission on Appointments and shall hold office at
the pleasure of the President. In view of this provision of the law, could the President of the Philippines legally
replace respondent Vivencio C. Alajar, with or without cause, by petitioner Juliano A. Alba?

Vivencio C. Alajar and judge Jose D. Evangelista maintain of course the negative side alleging that in the case of De los
Santos vs. Mallare, 48 Off. Gaz., 1791, a similar provision of the Administrative Code which prescribed:

Sec. 2545. Appointment of City Officials. — The President of the Philippines shall appoint, with the consent of
the Commission on Appointments of the Congress of the Philippines, the mayor, the vice-mayor . . . and he may
REMOVE at pleasure any of the said officers . . .,

has been declared incompatible with the constitutional inhibitation that "no officer or employee in the Civil Service shall
be removed or suspended except for cause as provided by law", because the two provisions are mutually repugnant and
absolutely irreconcilable. In express terms, one permits what the other in similar manner prohibits. And the Supreme
Court then said "that the particular provisions of law (section 2545 of the Revised Administrative Code) which gives the
Chief Executive power to remove an officer at pleasure (though not unconstitutional) have been repealed by the
Constitutional and ceased to be operative from the time the latter went into effect."

On the other hand, the Solicitor General in his reply memorandum considers the matter from different angle. The view
expressed by him therein refer to the tenure of office of public officials. We quote from said memorandum the following:

A public office is the right, authority and duty, created and conferred by law, by which for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of
the sovereign function of government, to be exercised by him for the benefit of the public. The individual so
invested is a public officer (7 Mechem, Public Officers, section 1).

The question is whether an officer appointed for a definite time or during good behaviour, had any vested
interest or contract right in his office, of which Congress could not deprive him. The question is not novel. There
seems to be but little difficulty in deciding that there was no such interest or right (Grenshaw vs. United States,
134, U.S. 99, 104).

xxx     xxx     xxx

Admittedly, the act of Congress in creating a public office, defining its powers, functions and fixing the "term" or
the period during which the officer may claim to hold the office as of right and the "tenure" or the term during
which the incumbent actually holds the office, is a valid and constitutional exercise of legislative power (Article
VI, section 1, Constitution of the Philippines; Jover vs. Borra, G.R. No. L-6782, July 25, 1953; Nueno vs. Angeles,
76 Phil., 12; Francia vs. Pecson and Subido, 47 Off, Gaz., 12 Supp. p. 296). In the exercise of the power,
Congress enacted Republic Act No. 603 on April 11, 1951, creating the City of Roxas and providing, among
others for the position of Vice-Mayor and its tenure or period during which the incumbent Vice-Mayor
holds office at the pleasure of the President (section 8, article II, Republic Act No. 603).

12
In Jover vs. Borra, supra, this Court through Mr. Justice Padilla, held that:

The legislative intent to provide for a fixed period of office tenure for the Mayor of the City of Iloilo and not to
make him removable at the pleasure of the appointing authority may be inferred from the fact that whereas the
appointment of the Vice-Mayor of the same city, as provided for in an amendatory act (Republic Act No. 365),
and those of the Mayors and Vice-Mayor of other cities (section 2545, Rev. Adm. Code; Commonwealth Acts
Nos. 39, 51, 338, 520, 547 and 592; Republic Acts Nos. 162, 170, as amended, 179, as amended; 183, 288, as
amended; 305, 306, 327, 328, 521, 523, 525, as amended; 537 and 603) are at pleasure, that of the Mayor of
the City of Iloilo is for a fixed period of time, as provided for in the original charter (Commonwealth Act No. 57),
and in this continued unchanged despite subsequent amendatory acts (Commonwealth Act No. 158; Republic
Act Nos. 276 and 365).

So, the logical inference from the above quoted excerpt of the decision of this Court promulgated long after the
decision rendered in the case of De los Santos vs. Mallare, supra, is that Congress can legally and
constitutionally make the tenure of certain officials dependent upon the pleasure of the President.

xxx     xxx     xxx

The pervading error of the respondents lies in the fact that they insist on the act of the President in designating
petitioner Alba in the place of respondent Alajar as one of removal. The replacement of respondent Alajar is not
removal, but an expiration of its tenure, which is one of the ordinary modes of terminating official relations. On
this score, section 2545 of the Revised Administrative Code which was declared inoperative in the Santos vs.
Mallare case, is different from section 8 of Republic Act No. 603, Section 2545 refers to removal at pleasure
while section 8 of Republic Act No. 603 refers to holding office at the pleasure of the President.

Clearly, what is involved here is not the question of removal, or whether legal cause should precede or not that
removal. What is involved here is the creation of an office and the tenure of such office, which has been made
expressly dependent upon the pleasure of the President.

The cases relied upon by respondents are, therefore, inopposite to the instant proceedings. For all of them
relate to removal of officials in violation of laws which prescribed fixity of term.

Even assuming for the moment that the act of replacing Alajar constitute removal, the act itself is valid and
lawful, for under section 8 of Republic Act No. 603, no fixity of tenure has been provided for, and the pleasure
of the President has been exercised in accordance with the policy laid down by Congress therein.

"Thus, in Lacson vs. Roque (49 Off. Gaz., 93, 101-102), this Court made clear that:

The most liberal view that can be taken of the power of the President to remove the Mayor of the City of Manila
is that it must be for cause. Even those who would uphold the legality of the Mayor's suspension do not go so
far as to claim power in the Chief Executive to remove the Mayor at pleasure. Untramelled discretionary power
to remove does not apply to appointed officers whose term of office is definite, much less elective officers. As
has been pointedly stated: "Fixity of tenure destroy the power of removal at pleasure otherwise incident to the
appointing power; the reason of this rule is the evident repugnance between the fixed term and the power of
arbitrary removal. . . .

An inferential authority to remove at pleasure cannot be declared, since the existence of a defined term, ipso
facto, negatives such an inference, and implies a contrary presumption, i.e., that the incumbent shall hold office
to the end of his term subject to removal for cause. (State ex rel. Gallaghar vs. Brown, 57 Mo. Ap., 302,
expressly adopted by the Supreme Court in State ex rel. vs. Maroney, 191 Mo., 548; etc.)

It is only in those cases in which the office is held at the pleasure of the appointing power and where the power
of removal is exercisable at its mere discretion, that the officer may be removed without notice or hearing.

"Thus, in Jover vs. Borra, supra, the same rule was reiterated:

The legislative intent to provide for a fixed period of office tenure for the Mayor of the City of Iloilo and not to
make him removable at the pleasure of the appointing authority may be inferred from the fact that whereas
the appointment of the Vice-Mayor of the same city, as provided for in an amendatory act (Republic Act No.
365), and those of the Mayors and Vice-Mayor of other cities (section 2545, Revised Administrative Code;
Commonwealth Acts Nos. 39, 51, 338, 520, 547 and 592; Republic Acts Nos. 162; 170, as amended; 179, as
amended; 183, 288, as amended; 305; 306; 327; 328; 521; 523; 525, as amended; 537; and 603) are at
pleasure, that of the Mayor of the City of Iloilo is for a fixed period of time, as provided for in the original charter
(Commonwealth Act No. 57), and this continued unchanged despite subsequent amendatory acts
(Commonwealth Act No. 158; Republic Acts Nos. 276 and 365).

It is an established rule that when the law authorizes a superior officer to remove a subordinate at pleasure his
discretion in the exercise of the power of removal is absolute. As long as the removal is effected in accordance
with the procedure prescribed by law, it may not be declared invalid by the courts, no matter how
reprehensible and unjust the motives of the removal might be (State vs. Kennelly, 55 Atl. 555).

13
 For respondent judge to ignore these judicial doctrines brought to his attention by petitioner Alba even during
the quo warranto proceedings and in the face of their impressive clarity to rashly resolve his doubt against the
constitutionality of section 8 of Republic Act No. 603 is to exert his discretion with the greatest measure of
abuse as to amount to lack of jurisdiction (Abad Santos, vs. Tarlac, 38 Off. Gaz., 830).

After all the foregoing circumstances are found to be present, it must be shown that the statute violates the
constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in the mind of the
court (Sharpless vs. Mayor, 21 Pa. 147). The court presume that every statute is valid. This presumption is
based upon the theory of separation of powers which makes the enactment and repeal of laws exclusively a
legislative function. As Chief Justice Marshall said: "It is but a decent respect due to the wisdom, the integrity,
and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until
its violation of the constitution is proved beyond all reasonable doubt." (Darmouth College vs. Woodward, 4
Wheat, 625.)

It should be remembered in this connection that before a legislature passes a bill, it is presumed that it has
decided the measure to be constitutional; and when the executive approves that bill it is also presumed that he
has been convinced of its validity. Under these conditions, therefore, if a statute is reasonably suspectible of
two interpretations, one making it unconstitutional and other valid, it is the duty of the court to adopt the
second construction in order to save the measure. (U.S. vs. Delaware & Hudson Co., 213 U.S. 366.) Sinco,
Philippine Political Law, 10 ed., pp. 525-526; Emphasis supplied.

We certainly agree with the foregoing views of the Solicitor General because they constitute a clear and fair exposition
of the law on the matter. Anyway, the provision of Section 8 of Republic Act No. 603 empowering the President of the
Philippine to appoint, with the consent of the Commission on Appointments, the Vice-Mayor of Roxas City, the latter to
hold office at the pleasure of the President, can not by any stench of imagination he considered unconstitutional and
void.

WHEREFORE, on the strenght of the foregoing considerations, and upon declaring the order of the Court of February 18,
1956 (Annex E) null and void and of no effect and upon making permanent the writ of preliminary injunction issued by
this Court in the present case, We hereby dismiss the quo warranto proceedings, for respondent Vivencio C. Alajar has
no right to continue occupying the office of Vice-Mayor of Roxas City after the President of the Philippines, in the
exercise of his power of allowing said respondent to hold office at his pleasure, displaced him from said office and
designated petitioner Juliano A. Alba as Acting Vice-Mayor of said City. Costs in both cases are taxed against Vivencio C.
Alajar.

Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L. and Endencia, JJ., concur.

Separate Opinions

CONCEPCION, J., concurring:

The majority opinion quotes, with approval, from the memorandum of the Solicitor General, who states, among other
things, ". . . that Congress can legally and constitutional make the tenure of certain officials dependent upon the
pleasure of the President"; that "the replacement of respondent Alajar is not removal but an expiration of its tenure,
which is one of the ordinary modes of terminating official relations"; and that "what is involved here is the creation of an
office and the tenure of such office, which has been made expressly dependent upon the pleasure of the President".
(Emphasis supplied.)

I believe that the word "tenure" in the foregoing expression should be submitted by "term", for:

. . . the term of an office must be distinguished from the tenure incumbent. The term means the time during
which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents
shall succeed one another. The tenure represents the term during which the incumbent actually holds the
office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons
within or beyond the power of the incumbent. (Topacio Nueno et al. vs. Angeles, 76 Phil., 12, 21-22; emphasis
supplied.)

The distinction between "term" and "tenure" is important, for, pursuant to the Constitution, "no officer or employee in
the Civil Service may be removed or suspended except for cause, as provided by law" (Art. XII, section 4), and this
fundamental principle would be defeated if Congress could legally make the tenure of some officials dependent upon the
pleasure of the President, by clothing the latter with blanket authority to replace a public officer before the expiration of
his term.

In the case at bar, the term of respondent Alajar as Vice-Mayor of the City of Roxas is not fixed by law. However, the
latter, in effect, vests in the President the power to fix such term. When, in November, 1955, petitioner Alba was
designated as Acting Vice-Mayor of said City, the term of respondent Alajar was, thereby, fixed implicity by the
President, in the exercise of his aforementioned authority. Thus, the term of office of Alajar expired and his right to hold
office was extinguished, with the same legal effect as if the term had been fixed by Congress itself. In other words,
Alajar was not removed from office, for "to remove an officer is to oust him from office before the expiration of his term"
14
(Manalang vs. Quitoriano et al., 50 Off. Gaz., 2515). Alajar merely lost the right to hold the office of Vice-Mayor of the
City of Roxas by expiration of his term as such.

Subject to the foregoing qualifications, I concur in the opinion penned by Mr. Justice Felix.

Paras, C.J. and Montemayor, JJ., concur.

d. MORFE VS MUTUC (22 SCRA, 424, 1968)

G.R. No. L-20387           January 31, 1968

JESUS P. MORFE, plaintiff-appellee, 
vs.
AMELITO R. MUTUC, as Executive Secretary, ET AL., defendants-appellants.

Jesus P. Morfe for and his own behalf as plaintiff-appellee. 

Office of the Solicitor General for defendants-appellants.

FERNANDO, J.:

Congress in 1960 enacted the Anti-Graft and Corrupt Practices Act 1 to deter public officials and employees from
committing acts of dishonesty and improve the tone of morality in public service. It was declared to be the state policy
"in line with the principle that a public office is a public trust, to repress certain acts of public officers and private
persons alike which constitute graft or corrupt practices or which may lead thereto."  2 Nor was it the first statute of its
kind to deal with such a grave problem in the public service that unfortunately has afflicted the Philippines in the post-
war era. An earlier statute decrees the forfeiture in favor of the State of any property found to have been unlawfully
acquired by any public officer or employee. 3

One of the specific provisions of the Anti-Graft and Corrupt Practices Act of 1960 is that every public officer, either within
thirty (30) days after its approval or after his assumption of office "and within the month of January of every other year
thereafter", as well as upon the termination of his position, shall prepare and file with the head of the office to which he
belongs, "a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and
sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the
next preceding calendar: . . ." 4

In this declaratory relief proceeding, the periodical submission "within the month of January of every other year
thereafter" of such sworn statement of assets and liabilities after an officer or employee had once bared his financial
condition upon assumption of office was challenged for being violative of due process as an oppressive exercise of police
power and as an unlawful invasion of the constitutional right to privacy, implicit in the ban against unreasonable search
and seizure construed together with the prohibition against self-incrimination. The lower court in the decision appealed
from sustained plaintiff, then as well as now, a judge of repute of a court of first instance. For it, such requirement of
periodical submission of such sworn statement of assets and liabilities exceeds the permissible limit of the police power
and is thus offensive to the due process clause.

We do not view the matter thus and accordingly reverse the lower court.

1. The reversal could be predicated on the absence of evidence to rebut the presumption of validity. For in this action for
declaratory relief filed with the Court of First Instance of Pangasinan on January 31, 1962, plaintiff, after asserting his
belief "that it was a reasonable requirement for employment that a public officer make of record his assets and liabilities
upon assumption of office and thereby make it possible thereafter to determine whether, after assuming his position in
the public service, he accumulated assets grossly disproportionate to his reported incomes, the herein plaintiff [having]
filed within the period of time fixed in the aforesaid Administrative Order No. 334 the prescribed sworn statement of
financial condition, assets, income and liabilities, . . ."  5 maintained that the provision on the "periodical filing of sworn
statement of financial condition, assets, income and liabilities after an officer or employee had once bared his financial
condition, upon assumption of office, is oppressive and unconstitutional." 6

As earlier noted, both the protection of due process and the assurance of the privacy of the individual as may be inferred
from the prohibition against unreasonable search and seizure and self-incrimination were relied upon. There was also
the allegation that the above requirement amounts to "an insult to the personal integrity and official dignity" of public
officials, premised as it is "on the unwarranted and derogatory assumption" that they are "corrupt at heart" and unless
thus restrained by this periodical submission of the statements of "their financial condition, income, and expenses, they
cannot be trusted to desist from committing the corrupt practices defined. . . ."  7 It was further asserted that there was
no need for such a provision as "the income tax law and the tax census law also require statements which can serve to
determine whether an officer or employee in this Republic has enriched himself out of proportion to his reported
income." 8

Then on February 14, 1962, came an Answer of the then Executive Secretary and the then Secretary of Justice as
defendants, where after practically admitting the facts alleged, they denied the erroneous conclusion of law and as one
15
of the special affirmative defenses set forth: "1. That when a government official, like plaintiff, accepts a public position,
he is deemed to have voluntarily assumed the obligation to give information about his personal affair, not only at the
time of his assumption of office but during the time he continues to discharge public trust. The private life of an
employee cannot be segregated from his public life. . . ."  9 The answer likewise denied that there was a violation of his
constitutional rights against self-incrimination as well as unreasonable search and seizure and maintained that "the
provision of law in question cannot be attacked on the ground that it impairs plaintiff's normal and legitimate enjoyment
of his life and liberty because said provision merely seeks to adopt a reasonable measure of insuring the interest or
general welfare in honest and clean public service and is therefore a legitimate exercise of the police power." 10

On February 27, 1962, plaintiff filed a Motion for judgment on the pleadings as in his opinion all his material allegations
were admitted. Then on March 10, 1962, an order was issued giving the parties thirty days within which to submit
memoranda, but with or without them, the case was deemed submitted for decision the lower court being of the belief
that "there is no question of facts, . . . the defendants [having admitted] all the material allegations of the complaint." 11

The decision, now on appeal, came on July 19, 1962, the lower court declaring "unconstitutional, null and void Section 7,
Republic Act No. 3019, insofar as it required periodical submittal of sworn statements of financial conditions, assets and
liabilities of an official or employee of the government after he had once submitted such a sworn statement upon
assuming office; . . . ." 12

In Ermita-Malate Hotel and Motel Operators Association v. The Mayor of Manila, 13 it was the holding of this Court that in
the absence of a factual foundation, the lower court deciding the matter purely "on the pleadings and the stipulation of
facts, the presumption of validity must prevail." In the present case likewise there was no factual foundation on which
the nullification of this section of the statute could be based. Hence as noted the decision of the lower court could be
reversed on that ground.

A more extended consideration is not inappropriate however, for as likewise made clear in the above Ermita-Malate
Hotel case: "What cannot be stressed sufficiently is that if the liberty involved were freedom of the mind or the person,
the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed
affects at the most rights of property, the permissible scope of regulatory measure is wider."

Moreover, in the Resolution denying the Motion for Reconsideration in the above case, we expressly affirmed: "This is
not to discount the possibility of a situation where the nullity of a statute, executive order, or ordinance may not be
readily apparent but the threat to constitutional rights, especially those involving the freedom of the mind, present and
ominous." 14 In such an event therefore, "there should not be a rigid insistence on the requirement that evidence be
presented." Also, in the same Resolution, Professor Freund was quoted thus: "In short, when freedom of the mind is
imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled, it is the lawmakers'
judgment that commands respect. This dual standard may not precisely reverse the presumption of constitutionality in
civil liberties cases, but obviously it does set up a hierarchy of values within the due process clause. 15

2. We inquire first whether or not by virtue of the above requirement for a periodical submission of sworn statement of
assets and liabilities, there is an invasion of liberty protected by the due process clause.

Under the Anti-Graft Act of 1960, after the statement of policy, 16 and definition of terms, 17 there is an enumeration of
corrupt practices declared unlawful in addition to acts or omissions of public officers already penalized by existing law.
They include persuading, inducing, or influencing another public officer to perform an act constituting a violation of rules
and regulations duly promulgated by competent authority or an offense in connection with the official duties of the
latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense; requesting or
receiving directly or indirectly any gift, present, share, percentage, or benefit, for himself, or for any other person, in
connection with any contract or transaction between the government and any other party, wherein the public officer in
his official capacity, has to intervene under the law; requesting or receiving directly or indirectly any gift, present, or
other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any
manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given; accepting or having any member of his family accept employment in a
private enterprise which has pending official business with him during the pendency thereof or within one year after its
termination; causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence; neglecting or refusing, after due demand or
request, without sufficient justification, to act within a reasonable time on any matter pending before him for the
purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit
or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating
against any other interested party; entering, on behalf of the Government, into any contract or transaction manifestly
and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby; having directly
or indirectly financial or pecuniary interest in any business, contract or transaction in connection with which he
intervenes or takes part in his official capacity or in which he is prohibited by the Constitution or by any law from having
any interests; becoming interested directly or indirectly, for personal gain, or having a material interest in any
transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises
discretion in such approval, even if he votes against the same or does not participate in such action; approving or
granting knowingly any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled
to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or
entitled and divulging valuable information of a confidential character, acquired by his office or by him on account of his
official position to unauthorized persons, or releasing such information in advance of its authorized release date. 18

After which come the prohibition on private individuals, 19 prohibition on certain relatives, 20 and prohibition on Members
of Congress. 21 Then there is this requirement of a statement of assets and liabilities, that portion requiring periodical
submission being challenged here. 22 The other sections of the Act deal with dismissal due to unexplained wealth,
16
reference being made to the previous statute, 23 penalties for violation, 24 the vesting of original jurisdiction in the Court
of First Instance as the competent court, 25 the prescription of offenses, 26 the prohibition against any resignation or
retirement pending investigation, criminal or administrative or pending a prosecution,  27suspension and loss of
benefits, 28 exception of unsolicited gifts or presents of small or insignificant value as well as recognition of legitimate
practice of one's profession or trade or occupation, 29 the separability clause, 30 and its effectivity. 31

Nothing can be clearer therefore than that the Anti-Graft Act of 1960 like the earlier statute 32 was precisely aimed at
curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public
service. It is intended to further promote morality in public administration. A public office must indeed be a public trust.
Nobody can cavil at its objective; the goal to be pursued commands the assent of all. The conditions then prevailing
called for norms of such character. The times demanded such a remedial device.

The statute was framed with that end in view. It is comprehensive in character, sufficiently detailed and explicit to make
clear to all and sundry what practices were prohibited and penalized. More than that, an effort was made, so evident
from even a cursory perusal thereof, to avoid evasions and plug loopholes. One such feature is the challenged section.
Thereby it becomes much more difficult by those disposed to take advantage of their positions to commit acts of graft
and corruption.

While in the attainment of such public good, no infringement of constitutional rights is permissible, there must be a
showing, clear, categorical, and undeniable, that what the Constitution condemns, the statute allows. More specifically,
since that is the only question raised, is that portion of the statute requiring periodical submission of assets and
liabilities, after an officer or employee had previously done so upon assuming office, so infected with infirmity that it
cannot be upheld as valid?

Or, in traditional terminology, is this requirement a valid exercise of the police power? In the aforesaid Ermita-Malate
Hotel decision, 33 there is a reaffirmation of its nature and scope as embracing the power to prescribe regulations to
promote the health, morals, education, good order, safety, or the general welfare of the people. It has been negatively
put forth by Justice Malcolm as "that inherent and plenary power in the state which enables it to prohibit all things
hurtful to the comfort, safety and welfare of society." 34

Earlier Philippine cases refer to police power as the power to promote the general welfare and public interest;  35 to enact
such laws in relation to persons and property as may promote public health, public morals, public safety and the general
welfare of each inhabitant; 36 to preserve public order and to prevent offenses against the state and to establish for the
intercourse of citizen with citizen those rules of good manners and good neighborhood calculated to prevent conflict of
rights. 37 In his work on due process, Mott 38 stated that the term police power was first used by Chief Justice Marshall. 39

As currently in use both in Philippine and American decisions then, police power legislation usually has reference to
regulatory measures restraining either the rights to property or liberty of private individuals. It is undeniable however
that one of its earliest definitions, valid then as well as now, given by Marshall's successor, Chief Justice Taney does not
limit its scope to curtailment of rights whether of liberty or property of private individuals. Thus: "But what are the police
powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the
extent of its dominions. And whether a State passes a quarantine law, or a law to punish offenses, or to establish courts
of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it
exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits
of its domain." 40 Text writers like Cooley and Burdick were of a similar mind. 41

What is under consideration is a statute enacted under the police power of the state to promote morality in public
service necessarily limited in scope to officialdom. May a public official claiming to be adversely affected rely on the due
process clause to annul such statute or any portion thereof? The answer must be in the affirmative. If the police power
extends to regulatory action affecting persons in public or private life, then anyone with an alleged grievance can invoke
the protection of due process which permits deprivation of property or liberty as long as such requirement is observed.

While the soundness of the assertion that a public office is a public trust and as such not amounting to property in its
usual sense cannot be denied, there can be no disputing the proposition that from the standpoint of the security of
tenure guaranteed by the Constitution the mantle of protection afforded by due process could rightfully be invoked. It
was so implicitly held in Lacson v. Romero, 42 in line with the then pertinent statutory provisions  43 that procedural due
process in the form of an investigation at which he must be given a fair hearing and an opportunity to defend himself
must be observed before a civil service officer or employee may be removed. There was a reaffirmation of the view in
even stronger language when this Court through Justice Tuason in Lacson v. Roque 44 declared that even without express
provision of law, "it is established by the great weight of authority that the power of removal or suspension for cause can
not, except by clear statutory authority, be exercised without notice and hearing." Such is likewise the import of a
statement from the then Justice, now Chief Justice, Concepcion, speaking for the Court in Meneses v. Lacson; 45 "At any
rate, the reinstatement directed in the decision appealed from does not bar such appropriate administrative action as
the behaviour of petitioners herein may warrant, upon compliance with the requirements of due process."

To the same effect is the holding of this Court extending the mantle of the security of tenure provision to employees of
government-owned or controlled corporations entrusted with governmental functions when through Justice Padilla
in Tabora v. Montelibano, 46 it stressed: "That safeguard, guarantee, or feeling of security that they would hold their
office or employment during good behavior and would not be dismissed without justifiable cause to be determined in an
investigation, where an opportunity to be heard and defend themselves in person or by counsel is afforded them, would
bring about such a desirable condition." Reference was there made to promoting honesty and efficiency through an
assurance of stability in their employment relation. It was to be expected then that through Justice Labrador in Unabia v.
City Mayor, 47 this Court could categorically affirm: "As the removal of petitioner was made without investigation and
without cause, said removal is null and void. . . ."

17
It was but logical therefore to expect an explicit holding of the applicability of due process guaranty to be forthcoming. It
did in Cammayo v. Viña, 48 where the opinion of Justice Endencia for the Court contained the following unmistakable
language: "Evidently, having these facts in view, it cannot be pretended that the constitutional provision of due process
of law for the removal of the petitioner has not been complied with."

Then came this restatement of the principle from the pen of Justice J.B.L. Reyes "We are thus compelled to conclude that
the positions formerly held by appellees were not primarily confidential in nature so as to make their terms of office co-
terminal with the confidence reposed in them. The inevitable corollary is that respondents-appellees, Leon Piñero, et al.,
were not subject to dismissal or removal, except for cause specified by law and within due process. . . ." 49 In a still later
decision, Abaya v. Subido, 50 this Court, through Justice Sanchez, emphasized "that the vitality of the constitutional
principle of due process cannot be allowed to weaken by sanctioning cancellation" of an employee's eligibility or "of his
dismissal from service — without hearing — upon a doubtful assumption that he has admitted his guilt for an offense
against Civil Service rules." Equally emphatic is this observation from the same case: "A civil service employee should be
heard before he is condemned. Jurisprudence has clung to this rule with such unrelenting grasp that by now it would
appear trite to make citations thereof."

If as is so clearly and unequivocally held by this Court, due process may be relied upon by public official to protect the
security of tenure which in that limited sense is analogous to property, could he not likewise avail himself of such
constitutional guarantee to strike down what he considers to be an infringement of his liberty? Both on principle, reason
and authority, the answer must be in the affirmative. Even a public official has certain rights to freedom the government
must respect. To the extent then, that there is a curtailment thereof, it could only be permissible if the due process
mandate is not disregarded.

Since under the constitutional scheme, liberty is the rule and restraint the exception, the question raised cannot just be
brushed aside. In a leading Philippine case, Rubi v. Provincial Board, 51 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 personal 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." In accordance with this case therefore, the rights of the
citizens 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; to pursue any avocation, are all deemed embraced in the concept of liberty. This Court in the same case,
however, gave the warning that liberty as understood in democracies, is not license. Implied in the term is restraint by
law for the good of the individual and for the greater good, the peace and order of society and the general well-being.
No one can do exactly as he pleases. Every man must renounce unbridled license. In the words of Mabini as quoted by
Justice Malcolm, "liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and
honorable conscience of the individual."

The liberty to be safeguarded is, as pointed out by Chief Justice Hughes, liberty in a social organization, 52 implying the
absence of arbitrary restraint not immunity from reasonable regulations and prohibitions imposed in the interest of the
community. 53 It was Linton's view that "to belong to a society is to sacrifice some measure of individual liberty, no
matter how slight the restraints which the society consciously imposes." 54 The above statement from Linton however,
should be understood in the sense that liberty, in the interest of public health, public order or safety, of general welfare,
in other words through the proper exercise of the police power, may be regulated. The individual thought, as Justice
Cardozo pointed out, has still left a "domain of free activity that cannot be touched by government or law at all, whether
the command is specially against him or generally against him and others." 55

Is this provision for a periodical submission of sworn statement of assets and liabilities after he had filed one upon
assumption of office beyond the power of government to impose? Admittedly without the challenged provision, a public
officer would be free from such a requirement. To the extent then that there is a compulsion to act in a certain way, his
liberty is affected. It cannot be denied however that under the Constitution, such a restriction is allowable as long as due
process is observed.

The more crucial question therefore is whether there is an observance of due process. That leads us to an inquiry into its
significance. "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. What then is the standard of due process which must exist both as a procedural and as substantive requisite to
free the challenged ordinance, or any action for that matter, from the imputation of legal infirmity sufficient to spell its
doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness
is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must
not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred
by lack of reasonableness. Correctly has it been identified as freedom from arbitrariness. It is the embodiment of the
sporting idea of fair play. It exacts fealty 'to those strivings for justice' and judges the act of officialdom of whatever
branch 'in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and
political thought.' It is not a narrow or 'technical conception with fixed content unrelated to time, place and
circumstances,' decisions based on such a clause requiring a 'close and perceptive inquiry into fundamental principles of
our society.' Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases." 56

It would be to dwell in the realm of abstractions and to ignore the harsh and compelling realities of public service with its
ever-present temptation to heed the call of greed and avarice to condemn as arbitrary and oppressive a requirement as
that imposed on public officials and employees to file such sworn statement of assets and liabilities every two years
after having done so upon assuming office. The due process clause is not susceptible to such a reproach. There was
therefore no unconstitutional exercise of police power.

4. The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in disposing
of the objections raised by plaintiff that the provision on the periodical submission of a sworn statement of assets and
18
liabilities is violative of the constitutional right to privacy. There is much to be said for this view of Justice Douglas:
"Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include
privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all
freedom." 57 As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most comprehensive
of rights and the right most valued by civilized men." 58

The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique
individual whose claim to privacy and interference demands respect. As 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 his personality. If his will is set by the will of others, he ceases
to be master of himself. I cannot believe that a man no longer master of himself is in any real sense free." 59

Nonetheless, in view of the fact that there is an express recognition of privacy, specifically that of communication and
correspondence which "shall be inviolable except upon lawful order of Court or when public safety and order" 60may
otherwise require, and implicitly in the search and seizure clause, 61 and the liberty of abode 62 the alleged repugnancy of
such statutory requirement of further periodical submission of a sworn statement of assets and liabilities deserves to be
further looked into.

In that respect the question is one of first impression, no previous decision having been rendered by this Court. It is not
so in the United States where, in the leading case of Griswold v. Connecticut, 63 Justice Douglas, speaking for five
members of the Court, stated: "Various guarantees create zones of privacy. The right of association contained in the
penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the
quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy.
The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the
citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth
Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." After referring to various American Supreme Court decisions, 64 Justice Douglas
continued: "These cases bear witness that the right of privacy which presses for recognition is a legitimate one."

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the
ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a
relationship lying within the zone of privacy created by several fundamental constitutional guarantees." 65 It has wider
implications though. The constitutional right to privacy has come into its own.1äwphï1.ñët

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification
with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt:
"The concept of limited government has always included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government, safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of this private sector — protection, in
other words, of the dignity and integrity of the individual — has become increasingly important as modern society has
developed. All the forces of a technological age — industrialization, urbanization, and organization — operate to narrow
the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society." 66

Even with due recognition of such a view, it cannot be said that the challenged statutory provision calls for disclosure of
information which infringes on the right of a person to privacy. It cannot be denied that the rational relationship such a
requirement possesses with the objective of a valid statute goes very far in precluding assent to an objection of such
character. This is not to say that a public officer, by virtue of a position he holds, is bereft of constitutional protection; it
is only to emphasize that in subjecting him to such a further compulsory revelation of his assets and liabilities, including
the statement of the amounts and sources of income, the amounts of personal and family expenses, and the amount of
income taxes paid for the next preceding calendar year, there is no unconstitutional intrusion into what otherwise would
be a private sphere.

5. Could it be said, however, as plaintiff contends, that insofar as the challenged provision requires the periodical filing of
a sworn statement of financial condition, it would be violative of the guarantees against unreasonable search and
seizure and against self-incrimination?

His complaint cited on this point Davis v. United States. 67 In that case, petitioner Davis was convicted under an
information charging him with unlawfully having in his possession a number of gasoline ration coupons representing so
many gallons of gasoline, an offense penalized under a 1940 statute. 68 He was convicted both in the lower court and in
the Circuit Court of Appeals over the objection that there was an unlawful search which resulted in the seizure of the
coupons and that their use at the trial was in violation of Supreme Court decisions. 69 In the District Court, there was a
finding that he consented to the search and seizure. The Circuit Court of Appeals did not disturb that finding although
expressed doubt concerning it, affirming however under the view that such seized coupons were properly introduced in
evidence, the search and seizure being incidental to an arrest, and therefore reasonable regardless of petitioner's
consent.

In affirming the conviction the United States Supreme Court, through Justice Douglas emphasized that the Court was
dealing in this case "not with private papers or documents, but with gasoline ration coupons which never became the

19
private property of the holder but remained at all times the property of the government and subject to inspection and
recall by it." 70 He made it clear that the opinion was not to be understood as suggesting "that officers seeking to reclaim
government property may proceed lawlessly and subject to no restraints. Nor [does it] suggest that the right to inspect
under the regulations subjects a dealer to a general search of his papers for the purpose of learning whether he has any
coupons subject to inspection and seizure. The nature of the coupons is important here merely as indicating that the
officers did not exceed the permissible limits of persuasion in obtaining them." 71

True, there was a strong dissenting opinion by Justice Frankfurter in which Justice Murphy joined, critical of what it
considered "a process of devitalizing interpretation" which in this particular case gave approval "to what was done by
arresting officers" and expressing the regret that the Court might be "in danger of forgetting what the Bill of Rights
reflects experience with police excesses."

Even this opinion, however, concerned that the constitutional guarantee against unreasonable search and seizure "does
not give freedom from testimonial compulsion. Subject to familiar qualifications every man is under obligation to give
testimony. But that obligation can be exacted only under judicial sanctions which are deemed precious to Anglo-
American civilization. Merely because there may be the duty to make documents available for litigation does not mean
that police officers may forcibly or fraudulently obtain them. This protection of the right to be let alone except under
responsible judicial compulsion is precisely what the Fourth Amendment meant to express and to safeguard." 72

It would appear then that a reliance on that case for an allegation that this statutory provision offends against the
unreasonable search and seizure clause would be futile and unavailing. This is the more so in the light of the latest
decision of this Court in Stonehill v. Diokno, 73 where this Court, through Chief Justice Concepcion, after stressing that the
constitutional requirements must be strictly complied with, and that it would be "a legal heresy of the highest order" to
convict anybody of a violation of certain statutes without reference to any of its determinate provisions delimited its
scope as "one of the most fundamental rights guaranteed in our Constitution," safeguarding "the sanctity, of the
domicile and the privacy of communication and correspondence. . . ." Such is precisely the evil sought to be remedied
by the constitutional provision above quoted — to outlaw the so-called general warrants.

It thus appears clear that no violation of the guarantee against unreasonable search and seizure has been shown to exist
by such requirement of further periodical submission of one's financial condition as set forth in the Anti-Graft Act of
1960.

Nor does the contention of plaintiff gain greater plausibility, much less elicit acceptance, by his invocation of the non-
incrimination clause. According to the Constitution: "No person shall be compelled to be a witness against
himself." 74 This constitutional provision gives the accused immunity from any attempt by the prosecution to make easier
its task by coercing or intimidating him to furnish the evidence necessary to convict. He may confess, but only if he
voluntarily wills it. He may admit certain facts but only if he freely chooses to. 75 Or he could remain silent, and the
prosecution is powerless to compel him to talk. 76 Proof is not solely testimonial in character. It may be documentary.
Neither then could the accused be ordered to write, when what comes from his pen may constitute evidence of guilt or
innocence. 77 Moreover, there can be no search or seizure of his house, papers or effects for the purpose of locating
incriminatory matter. 78

In a declaratory action proceeding then, the objection based on the guaranty against self-incrimination is far from
decisive. It is well to note what Justice Tuason stated: "What the above inhibition seeks to [prevent] is compulsory
disclosure of incriminating facts." 79 Necessarily then, the protection it affords will have to await, in the language of
Justice J. B. L. Reyes, the existence of actual cases, "be they criminal, civil or administrative." 80 Prior to such a stage,
there is no pressing need to pass upon the validity of the fear sincerely voiced that there is an infringement of the non-
incrimination clause. What was said in an American State decision is of relevance. In that case, a statutory provision
requiring any person operating a motor vehicle, who knows that injury has been caused a person or property, to stop
and give his name, residence, and his license number to the injured party or to a police officer was sustained against the
contention that the information thus exacted may be used as evidence to establish his connection with the injury and
therefore compels him to incriminate himself. As was stated in the opinion: "If the law which exacts this information is
invalid, because such information, although in itself no evidence of guilt, might possibly lead to a charge of crime
against the informant, then all police regulations which involve identification may be questioned on the same ground.
We are not aware of any constitutional provision designed to protect a man's conduct from judicial inquiry or aid him in
fleeing from justice. But, even if a constitutional right be involved, it is not necessary to invalidate the statute to secure
its protection. If, in this particular case, the constitutional privilege justified the refusal to give the information exacted
by the statute, that question can be raised in the defense to the pending prosecution. Whether it would avail, we are not
called upon to decide in this proceeding." 81

6. Nor could such a provision be nullified on the allegation that it constitutes "an insult to the personal integrity and
official dignity" of public officials. On its face, it cannot thus be stigmatized. As to its being unnecessary, it is well to
remember that this Court, in the language of Justice Laurel, "does not pass upon questions of wisdom, justice or
expediency of legislation." 82 As expressed by Justice Tuason: "It is not the province of the courts to supervise legislation
and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative
concern." 83 There can be no possible objection then to the observation of Justice Montemayor: "As long as laws do not
violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are
wise or salutary." 84 For they, according to Justice Labrador, "are not supposed to override legitimate policy and . . . never
inquire into the wisdom of the law." 85

It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, 86 that only
congressional power or competence, not the wisdom of the action taken may be the basis for declaring a statute invalid.
This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority
of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the
Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be
20
adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants
submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack
on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on its
wisdom cannot be sustained.

WHEREFORE, the decision of the lower court of July 19, 1962 "declaring unconstitutional, null and void Section 7,
Republic Act No. 3019, insofar as it requires periodical submittal of sworn statements of financial conditions, assets and
liabilities of an official or employee of the government after he had once submitted such a sworn statement . . . is
reversed." Without costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar and Angeles, JJ., concur.
Sanchez, J., reserves his vote.
Castro, J., concurs in the result.

VII. DATE OF EFFECTIVITY

a. 1987 ADMIN CODE, BOOK 1 CHAPTER 5, SECTION 18

 When Laws Take Effect. - Laws shall take effect after fifteen (15) days following the
completion of their publication in the Official Gazette or in a newspaper of general circulation,
unless it is otherwise provided

b. 1987 ADMIN CODE, BOOK 7, SECTIONS 2-9

 Section 2: Definitions. - As used in this Book:

(1) "Agency" includes any department, bureau, office, commission, authority or officer of
the National Government authorized by law or executive order to make rules, issue
licenses, grant rights or privileges, and adjudicate cases; research institutions with
respect to licensing functions; government corporations with respect to functions
regulating private right, privileges, occupation or business; and officials in the
exercise of disciplinary power as provided by law.

(2) "Rule" means any agency statement of general applicability that implements or
interprets a law, fixes and describes the procedures in, or practice requirements of,
an agency, including its regulations. The term includes memoranda or statements
concerning the internal administration or management of an agency not affecting
the rights of, or procedure available to, the public.

(3) "Rate" means any charge to the public for a service open to all and upon the same
terms, including individual or joint rates, tolls, classifications, or schedules thereof,
as well as commutation, mileage, kilometerage and other special rates which shall
be imposed by law or regulation to be observed and followed by any person.

(4) "Rule making" means an agency process for the formulation, amendment, or repeal
of a rule.

(5) "Contested case" means any proceeding, including licensing, in which the legal
rights, duties or privileges asserted by specific parties as required by the
Constitution or by law are to be determined after hearing.

(6) "Person" includes an individual, partnership, corporation, association, public or

private organization of any character other than an agency.

(7) "Party" includes a person or agency named or admitted as a party, or properly

seeking and entitled as of right to be admitted as a party, in any agency proceeding;
but nothing herein shall be construed to prevent an agency from admitting any
person or agency as a party for limited purposes.

(8) "Decision" means the whole or any part of the final disposition, not of an
interlocutory character, whether affirmative, negative, or injunctive in form, of an
agency in any matter, including licensing, rate fixing and granting of rights and
privileges.

(9) "Adjudication" means an agency process for the formulation of a final order.

(10) "License" includes the whole or any part of any agency permit, certificate, passport,
clearance, approval, registration, charter, membership, statutory exemption or other
form of permission, or regulation of the exercise of a right or privilege.

(11) "Licensing" includes agency process involving the grant, renewal, denial, revocation,
suspension, annulment, withdrawal, limitation, amendment, modification or
conditioning of a license.

21
 (12) "Sanction" includes the whole or part of a prohibition, limitation or other condition
affecting the liberty of any person; the withholding of relief; the imposition of penalty
or fine; the destruction, taking, seizure or withholding of property; the assessment of
damages, reimbursement, restitution, compensation, cost, charges or fees; the
revocation or suspension of license; or the taking of other compulsory or restrictive
action.

(13) "Relief" includes the whole or part of any grant of money, assistance, license,
authority, privilege, exemption, exception, or remedy; recognition of any claim, right,
immunity, privilege, exemption or exception; or taking of any action upon the
application or petition of any person.

(14) "Agency proceeding" means any agency process with respect to rule-making,
adjudication and licensing.

(15) "Agency action" includes the whole or part of every agency rule, order, license,
sanction, relief or its equivalent or denial thereof.

 Section 3: Filing. -

(1) Every agency shall file with the University of the Philippines Law Center three (3)
certified copies of every rule adopted by it. Rules in force on the date of effectivity of
this Code which are not filed within three (3) months from that date shall not
thereafter be the basis of any sanction against any party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out the
requirements of this section under pain of disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and shall be
open to public inspection.

 Section 4: Effectivity. - In addition to other rule-making requirements provided by law not

inconsistent with this Book, each rule shall become effective fifteen (15) days from the date
of filing as above provided unless a different date is fixed by law, or specified in the rule in
cases of imminent danger to public health, safety and welfare, the existence of which must be
expressed in a statement accompanying the rule. The agency shall take appropriate
measures to make emergency rules known to persons who may be affected by them.

 Section 5: Publication and Recording. - The University of the Philippines Law Center shall:

(1) Publish a quarter bulletin setting forth the text of rules filed with it during the
preceding quarter; and

(2) Keep an up-to-date codification of all rules thus published and remaining in effect,
together with a complete index and appropriate tables.

 Section 6: Omission of Some Rules. -

(1) The University of the Philippines Law Center may omit from the bulletin or the
codification any rule if its publication would be unduly cumbersome, expensive or
otherwise inexpedient, but copies of that rule shall be made available on application
to the agency which adopted it, and the bulletin shall contain a notice stating the
general subject matter of the omitted rule and new copies thereof may be obtained.

(2) Every rule establishing an offense or defining an act which, pursuant to law, is
punishable as a crime or subject to a penalty shall in all cases be published in full
text.

 Section 7: Distribution of Bulletin and Codified Rules. - The University of the Philippines Law
Center shall furnish one (1) free copy each of every issue of the bulletin and of the codified
rules or supplements to the Office of the President, Congress, all appellate courts and the
National Library. The bulletin and the codified rules shall be made available free of charge to
such public officers or agencies as the Congress may select, and to other persons at a price
sufficient to cover publication and mailing or distribution costs.

 Section 8: Judicial Notice. - The court shall take judicial notice of the certified copy of each
rule duly filed or as published in the bulletin or the codified rules.

 Section 9: Public Participation. -

(1) If not otherwise required by law, an agency shall, as far as practicable, publish or
circulate notices of proposed rules and afford interested parties the opportunity to
submit their views prior to the adoption of any rule.
22
 (2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates
shall have been published in a newspaper of general circulation at least two (2)
weeks before the first hearing thereon.

(3) In case of opposition, the rules on contested cases shall be observed.

c. REPUBLIC ACT 7160, SECTION 54-59
 Section 54. Approval of Ordinances. –
(a) Every ordinance enacted by the sangguniang panlalawigan, sangguniang panlungsod, or
sangguniang bayan shall be presented to the provincial governor or city or municipal
mayor, as the case may be. If the local chief executive concerned approves the same, he
shall affix his signature on each and every page thereof; otherwise, he shall veto it and
return the same with his objections to the sanggunian, which may proceed to reconsider
the same. The sanggunian concerned may override the veto of the local chief executive
by two-thirds (2/3) vote of all its members, thereby making the ordinance or resolution
effective for all legal intents and purposes.

(b) The veto shall be communicated by the local chief executive concerned to the
sanggunian within fifteen (15) days in the case of a province, and ten (10) days in the
case of a city or a municipality; otherwise, the ordinance shall be deemed approved as if
he had signed it.

(c) Ordinances enacted by the sangguniang barangay shall, upon approval by the majority of
all its members, be signed by the punong barangay.

 Section 55. Veto Power of the Local Chief Executive. -

(a) The local chief executive may veto any ordinance of the sanggunian panlalawigan,
sangguniang panlungsod, or sanggunian bayan on the ground that it is ultra vires or
prejudicial to the public welfare, stating his reasons therefor in writing.

(b) The local chief executive, except the punong barangay, shall have the power to veto any
particular item or items of an appropriations ordinance, an ordinance or resolution
adopting a local development plan and public investment program, or an ordinance
directing the payment of money or creating liability. In such a case, the veto shall not
affect the item or items which are not objected to. The vetoed item or items shall not
take effect unless the sanggunian overrides the veto in the manner herein provided;
otherwise, the item or items in the appropriations ordinance of the previous year
corresponding to those vetoed, if any, shall be deemed reenacted.

(c) The local chief executive may veto an ordinance or resolution only once. The sanggunian
may override the veto of the local chief executive concerned by two-thirds (2/3) vote of
all its members, thereby making the ordinance effective even without the approval of the
local chief executive concerned.

 Section 56. Review of Component City and Municipal Ordinances or Resolutions by the
Sangguniang Panlalawigan.

(a) Within three (3) days after approval, the secretary to the sanggunian panlungsod
or sangguniang bayan shall forward to the sangguniang panlalawigan for review,
copies of approved ordinances and the resolutions approving the local
development plans and public investment programs formulated by the local
development councils.

(b) Within thirty (30) days after the receipt of copies of such ordinances and
resolutions, the sangguniang panlalawigan shall examine the documents or
transmit them to the provincial attorney, or if there be none, to the provincial
prosecutor for prompt examination. The provincial attorney or provincial
prosecutor shall, within a period of ten (10) days from receipt of the documents,
inform the sangguniang panlalawigan in writing of his comments or
recommendations, which may be considered by the sangguniang panlalawigan in
making its decision.

23
 (c) If the sangguniang panlalawigan finds that such an ordinance or resolution is
beyond the power conferred upon the sangguniang panlungsod or sangguniang
bayan concerned, it shall declare such ordinance or resolution invalid in whole or
in part. The sangguniang panlalawigan shall enter its action in the minutes and
shall advise the corresponding city or municipal authorities of the action it has
taken.

(d) If no action has been taken by the sangguniang panlalawigan within thirty (30)
days after submission of such an ordinance or resolution, the same shall be
presumed consistent with law and therefore valid.

 Section 57. Review of Barangay Ordinances by the Sangguniang Panlungsod or Sangguniang

Bayan. -

(a) Within ten (10) days after its enactment, the sangguniang barangay shall furnish copies
of all barangay ordinances to the sangguniang panlungsod or sangguniang bayan
concerned for review as to whether the ordinance is consistent with law and city or
municipal ordinances.

(b) If the sangguniang panlungsod or sangguniang bayan, as the case may be, fails to take
action on barangay ordinances within thirty (30) days from receipt thereof, the same
shall be deemed approved.

(c) If the sangguniang panlungsod or sangguniang bayan, as the case may be, finds the
barangay ordinances inconsistent with law or city or municipal ordinances, the
sanggunian concerned shall, within thirty (30) days from receipt thereof, return the same
with its comments and recommendations to the sangguniang barangay concerned for
adjustment, amendment, or modification; in which case, the effectivity of the barangay
ordinance is suspended until such time as the revision called for is effected.

 Section 58. Enforcement of Disapproved Ordinances or Resolutions. - Any attempt to enforce

any ordinance or any resolution approving the local development plan and public investment
program, after the disapproval thereof, shall be sufficient ground for the suspension or
dismissal of the official or employee concerned.

 Section 59. Effectivity of Ordinances or Resolutions. -

(a) Unless otherwise stated in the ordinance or the resolution approving the local
development plan and public investment program, the same shall take effect after ten
(10) days from the date a copy thereof is posted in a bulletin board at the entrance of the
provincial capitol or city, municipal, or barangay hall, as the case may be, and in at least
two (2) other conspicuous places in the local government unit concerned.

(b) The secretary to the sanggunian concerned shall cause the posting of an ordinance or
resolution in the bulletin board at the entrance of the provincial capitol and the city,
municipal, or barangay hall in at least two (2) conspicuous places in the local government
unit concerned not later than five (5) days after approval thereof. The text of the
ordinance or resolution shall be disseminated and posted in Filipino or English and in the
language understood by the majority of the people in the local government unit
concerned, and the secretary to the sanggunian shall record such fact in a book kept for
the purpose, stating the dates of approval and posting.

(c) The gist of all ordinances with penal sanctions shall be published in a newspaper of
general circulation within the province where the local legislative body concerned
belongs. In the absence of any newspaper of general circulation within the province,
posting of such ordinances shall be made in all municipalities and cities of the province
where the sanggunian of origin is situated.

(d) In the case of highly urbanized and independent component cities, the main features of
the ordinance or resolution duly enacted or adopted shall, in addition to being posted, be
published once in a local newspaper of general circulation within the city: Provided, That
in the absence thereof the ordinance or resolution shall be published in any newspaper of
general circulation.

d. TAÑADA VS TUVERA (146 SCRA 446, 1986)

24
[G.R. No. L-63915. December 29, 1986.]

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,

INTEGRITY AND NATIONALISM, INC. (MABINI), Petitioners, v. 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, ETC., ET AL., Respondents.

SYLLABUS

FERNAN, J., concurring:chanrob1es virtual 1aw library

1. CIVIL LAW; EFFECT AND APPLICATION OF LAWS; ARTICLE 2, CIVIL CODE; PUBLICATION OF LAWS MADE TO ENSURE
CONSTITUTIONAL RIGHT TO DUE PROCESS AND TO INFORMATION. — The categorical statement by this Court on the
need for publication before any law be made effective seeks to prevent abuses on the part if the lawmakers and, at the
time, ensure to the people their constitutional right to due process and to information on matter of public
concern.chanroblesvirtuallawlibrary:red

RESOLUTION

CRUZ, J.:

Due process was invoked by the petitioners in demanding the disclosure or a number of presidential decrees which they
claimed had not been published as required by law. The government argued that while publication was necessary as a
rule, it was not so when it was "otherwise provided," as when the decrees themselves declared that they were to
become effective immediately upon their approval. In the decision of this case on April 24, 1985, the Court affirmed the
necessity for the publication of some of these decrees, declaring in the dispositive portion as follows:

"WHEREFORE, the Court hereby orders respondents to publish to the Official Gazette all unpublished presidential
issuances which are of general application, and unless so published, they shall have no binding force and effect."

The petitioners are now before us again, this time to move for reconsideration/clarification of that decision. 1
Specifically, they ask the following questions:

1. What is meant by "law of public nature" or "general applicability" ?

2. Must a distinction be made between laws of general applicability and laws which are not?

3. What is meant by "publication" ?

4. Where is the publication to be made?

5. When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of general
applicability and those which are not; that publication means complete publication; and that the publication must be
made forthwith in the Official Gazette. 2 

In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request for an advisory
opinion and should therefore be dismissed, and, on the merits, that the clause "unless it is otherwise provided" in Article
2 of the Civil Code meant that the publication required therein was not always imperative; that publication, when
necessary, did not have to be made in the Official Gazette; and that in any case the subject decision was concurred in
only by three justices and consequently not binding. This elicited a Reply 4 refuting these arguments. Came next the
February Revolution and the Court required the new Solicitor General to file a Rejoinder in view of the supervening
events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that issuances intended only for the
interval administration of a government agency or for particular persons did not have to be published; that publication
when necessary must be in full and in the Official Gazette; and that, however, the decision under reconsideration was
not binding because it was not supported by eight members of this Court. 5 

The subject of contention is Article 2 of the Civil Code providing as follows:

"ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette,
unless it is otherwise provided. This Code shall take effect one year after such publication."

After a careful study of this provision and of the arguments of the parties, both on the original petition and on the instant
motion, we have come to the conclusion, and so hold, that the clause "unless it is otherwise provided" refers to the date
of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not
mean that the legislature may make the law effective immediately upon approval, or on any other date, without its
previous publication.

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day
period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his separate

25
concurrence in the original decision, 6 is the Civil Code which did not become effective after fifteen days from its
publication in the Official Gazette but "one year after such publication." The general rule did not apply because it was
"otherwise provided."

It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason is that
such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to
govern it. Surely, if the legislature could validly provide that a law shall become effective immediately upon its approval
notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that
persons not aware of it would be prejudiced as a result; and they would be so not because of a failure to comply with it
but simply because they did not know of its existence. Significantly, this is not true only of penal laws as is commonly
supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to
the persons they may affect before they can begin to operate.

We note at this point the conclusive presumption that every person knows the law, which of course presupposes that the
law has been published if the presumption is to have any legal justification at all. It is no less important to remember
that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public concern," and
this certainly applies to, among others, and indeed especially, the legislative enactments of the government.

The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate
to the people in general albeit there are some that do not apply to them directly. An example is a law granting
citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely
cannot be said that such a law does not affect the public although it unquestionably does not apply directly to all the
people. The subject of such law is a matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in the courts of justice. In fact, a law without any bearing on the public
would be invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be valid,
the law must invariably affect the public interest even if it might be directly applicable only to one individual, or some of
the people only, and not to the public as a whole.

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition
for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the
legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national
territory and directly affects only the inhabitants of that place. All presidential decrees must be published, including
even, say, those naming a public place after a favored individual or exempting him from certain prohibitions or
requirements. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret
but to "fill in the details" of the Central Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case studies
to be made in petitions for adoption or the rules laid down by the head of a government agency on the assignments or
workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by
this rule but by the Local Government Code.

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the
contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential
decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in
a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial
compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential
decree undeniably of general applicability and interest, was "published" by the Marcos administration. 7 The evident
purpose was to withhold rather than disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were categorically for publication in the Official
Gazette 8 and that six others felt that publication could be made elsewhere as long as the people were sufficiently
informed. 9 One reserved his vote 10 and another merely acknowledged the need for due publication without indicating
where it should be made, 11 It is therefore necessary for the present membership of this Court to arrive at a clear
consensus on this matter and to lay down a binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic
releases and limited readership. Undoubtedly, newspapers of general circulation could better perform the function of
communicating the laws to the people as such periodicals are more easily available, have a wider readership, and come
out regularly. The trouble, though, is that this kind of publication is not the one required or authorized by existing law. As
far as we know, no amendment has been made of Article 2 of the Civil Code. The Solicitor General has not pointed to
such a law, and we have no information that it exists. If it does, it obviously has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we find it
impractical. That is not our function. That function belongs to the legislature. Our task is merely to interpret and apply
the law as conceived and approved by the political departments of the government in accordance with the prescribed

26
procedure. Consequently, we have no choice but to pronounce that under Article 2 of the Civil Code, the publication of
laws must be made in the Official Gazette, and not elsewhere, as a requirement for their effectivity after fifteen days
from such publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith, or at least as soon as possible, to give effect to the law
pursuant to the said Article 2. There is that possibility, of course, although not suggested by the parties that a law could
be rendered unenforceable by a mere refusal of the executive, for whatever reason, to cause its publication as required.
This is a matter, however, that we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory opinion is untenable,
to say the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open society, with all the acts of
the government subject to public scrutiny and available always to public cognizance. This has to be so if our country is
to remain democratic, with sovereignty residing in the people and all government authority emanating from them.

Although they have delegated the power of legislation, they retain the authority to review the work of their delegates
and to ratify or reject it according to their lights, through their freedom of expression and their right of suffrage. This
they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep
secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and
contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The
furtive law is like a scabbarded saber that cannot feint, parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon
thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days from their
publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code.
SO ORDERED.

Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr ., and Paras, JJ., concur.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court’s opinion penned by my distinguished colleague, Mr. Justice Isagani A. Cruz, I would like to
add a few observations. Even as a Member of the defunct Batasang Pambansa, I took a strong stand against the
insidious manner by which the previous dispensation had promulgated and made effective thousands of decrees,
executive orders, letters of instructions, etc. Never has the law-making power which traditionally belongs to the
legislature been used and abused to satisfy the whims and caprices of a one-man legislative mill as it happened in the
past regime. Thus, in those days, it was not surprising to witness the sad spectacle of two presidential decrees bearing
the same number, although covering two different subject matters. In point is the case of two presidential decrees
bearing number 1686 issued on March 19, 1980, one granting Philippine citizenship to Michael M. Keon, the then
President’s nephew and the other imposing a tax on every motor vehicle equipped with air-conditioner. This was further
exacerbated by the issuance of PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to basketball
players Jeffrey Moore and Dennis George Still.

The categorical statement by this Court on the need for publication before any law may be made effective seeks to
prevent abuses on the part of the lawmakers and, at the same time, ensures to the people their constitutional right to
due process and to information on matters of public concern.

FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At the same time, I wish
to add a few statements to reflect my understanding of what the Court is saying.

A statute which by its terms provides for its coming into effect immediately upon approval thereof, is properly
interpreted as coming into effect immediately upon publication thereof in the Official Gazette as provided in Article 2 of
the Civil Code. Such statute, in other words, should not be regarded as purporting literally to come into effect
immediately upon its approval or enactment and without need of publication. For so to interpret such statute would be
to collide with the constitutional obstacle posed by the due process clause. The enforcement of prescriptions which are
both unknown to and unknowable by those subjected to the statute, has been throughout history a common tool of
tyrannical governments. Such application and enforcement constitutes at bottom a negation of the fundamental
principle of legality in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as distinguished from
any other medium such as a newspaper of general circulation, is embodied in a statutory norm and is not a
constitutional command. The statutory norm is set out in Article 2 of the Civil Code and is supported and reinforced by
Section 1 of Commonwealth Act No. 638 and Section 35 of the Revised Administrative Code. A specification of the
Official Gazette as the prescribed medium of publication may therefore be changed. Article 2 of the Civil Code could,
without creating a constitutional problem, be amended by a subsequent statute providing, for instance, for publication
either in the Official Gazette or in a newspaper of general circulation in the country. Until such an amendatory statute is
in fact enacted, Article 2 of the Civil Code must be obeyed and publication effected in the Official Gazette and not in any
other medium.

27
 e. PHILIPPINE VETERANS BANK EMPLOYEES UNION VS VEGA (GR NO. 105364, JUNE 28, 2001)

G.R. No. 105364*            June 28, 2001

PHILIPPINE VETERANS BANK EMPLOYEES UNION-N.U.B.E. and PERFECTO V. FERNANDEZ, petitioners, 

vs.
HONORABLE BENJAMIN VEGA, Presiding Judge of Branch 39 of the REGIONAL TRIAL COURT of Manila, the
CENTRAL BANK OF THE PHILIPPINES and THE LIQUIDATOR OF THE PHILIPPINE VETERANS BANK,respondents

KAPUNAN, J.:

May a liquidation court continue with liquidation proceedings of the Philippine Veterans Bank (PVB) when Congress had
mandated its rehabilitation and reopening?

This is the sole issue raised in the instant Petition for Prohibition with Petition for Preliminary Injunction and application
for Ex Parte Temporary Restraining Order.

The antecedent facts of the case are as follows:

Sometime in 1985, the Central Bank of the Philippines (Central Bank, for brevity) filed with Branch 39 of the Regional
Trial Court of Manila a Petition for Assistance in the Liquidation of the Philippine Veterans Bank, the same docketed as
Case No. SP-32311. Thereafter, the Philipppine Veterans Bank Employees Union-N.U.B.E., herein petitioner, represented
by petitioner Perfecto V. Fernandez, filed claims for accrued and unpaid employee wages and benefits with said court in
SP-32311.1

After lengthy proceedings, partial payment of the sums due to the employees were made. However, due to the
piecemeal hearings on the benefits, many remain unpaid. 2

On March 8, 1991, petitioners moved to disqualify the respondent judge from hearing the above case on grounds of bias
and hostility towards petitioners.3

On January 2, 1992, the Congress enacted Republic Act No. 7169 providing for the rehabilitation of the Philippine
Veterans Bank.4

Thereafter, petitioners filed with the labor tribunals their residual claims for benefits and for reinstatement upon
reopening of the bank.5

Sometime in May 1992, the Central Bank issued a certificate of authority allowing the PVB to reopen. 6

Despite the legislative mandate for rehabilitation and reopening of PVB, respondent judge continued with the liquidation
proceedings of the bank. Moreover, petitioners learned that respondents were set to order the payment and release of
employee benefits upon motion of another lawyer, while petitioners’ claims have been frozen to their prejudice.

Hence, the instant petition.

Petitioners argue that with the passage of R.A. 7169, the liquidation court became functus officio, and no longer had the
authority to continue with liquidation proceedings.

In a Resolution, dated June 8, 1992, the Supreme Court resolved to issue a Temporary Restraining Order enjoining the
trial court from further proceeding with the case.

On June 22, 1992, VOP Security & Detective Agency (VOPSDA) and its 162 security guards filed a Motion for Intervention
with prayer that they be excluded from the operation of the Temporary Restraining Order issued by the Court. They
alleged that they had filed a motion before Branch 39 of the RTC of Manila, in SP-No. 32311, praying that said court
order PVB to pay their backwages and salary differentials by authority of R.A. No 6727, Wage Orders No. NCR-01 and
NCR-01-Ad and Wage Orders No. NCR-02 and NCR-02-A; and, that said court, in an Order dated June 5, 1992, approved
therein movants’ case and directed the bank liquidator or PVB itself to pay the backwages and differentials in
accordance with the computation incorporated in the order. Said intervenors likewise manifested that there was an error
in the computation of the monetary benefits due them.

On August 18, 1992, petitioners, pursuant to the Resolution of this Court, dated July 6, 1992, filed their Comment
opposing the Motion for Leave to File Intervention and for exclusion from the operation of the T.R.O. on the grounds that
the movants have no legal interest in the subject matter of the pending action; that allowing intervention would only
cause delay in the proceedings; and that the motion to exclude the movants from the T.R.O. is without legal basis and
would render moot the relief sought in the petition.

28
On September 3, 1992, the PVB filed a Petition-In-Intervention praying for the issuance of the writs of certiorari and
prohibition under Rule 65 of the Rules of Court in connection with the issuance by respondent judge of several orders
involving acts of liquidation of PVB even after the effectivity of R.A. No. 7169. PVB further alleges that respondent judge
clearly acted in excess of or without jurisdiction when he issued the questioned orders.

We find for the petitioners.

Republic Act No. 7169 entitled "An Act To Rehabilitate The Philippine Veterans Bank Created Under Republic Act No.
3518, Providing The Mechanisms Therefor, And For Other Purposes", which was signed into law by President Corazon C.
Aquino on January 2, 1992 and which was published in the Official Gazette on February 24, 1992, provides in part for the
reopening of the Philippine Veterans Bank together with all its branches within the period of three (3) years from the
date of the reopening of the head office.7 The law likewise provides for the creation of a rehabilitation committee in
order to facilitate the implementation of the provisions of the same. 8

Pursuant to said R.A. No. 7169, the Rehabilitation Committee submitted the proposed Rehabilitation Plan of the PVB to
the Monetary Board for its approval. Meanwhile, PVB filed a Motion to Terminate Liquidation of Philippine Veterans Bank
dated March 13, 1992 with the respondent judge praying that the liquidation proceedings be immediately terminated in
view of the passage of R.A. No. 7169.

On April 10, 1992, the Monetary Board issued Monetary Board Resolution No. 348 which approved the Rehabilitation
Plan submitted by the Rehabilitaion Committee.

Thereafter, the Monetary Board issued a Certificate of Authority allowing PVB to reopen.

On June 3, 1992, the liquidator filed A Motion for the Termination of the Liquidation Proceedings of the Philippine
Veterans Bank with the respondent judge.

As stated above, the Court, in a Resolution dated June 8, 1992, issued a temporary restraining order in the instant case
restraining respondent judge from further proceeding with the liquidation of PVB.

On August 3, 1992, the Philippine Veterans Bank opened its doors to the public and started regular banking operations.

Clearly, the enactment of Republic Act No. 7169, as well as the subsequent developments has rendered the liquidation
court functus officio. Consequently, respondent judge has been stripped of the authority to issue orders involving acts of
liquidation.

Liquidation, in corporation law, connotes a winding up or settling with creditors and debtors. 9 It is the winding up of a
corporation so that assets are distributed to those entitled to receive them. It is the process of reducing assets to cash,
discharging liabilities and dividing surplus or loss.

On the opposite end of the spectrum is rehabilitation which connotes a reopening or reorganization. Rehabilitation
contemplates a continuance of corporate life and activities in an effort to restore and reinstate the corporation to its
former position of successful operation and solvency. 10

It is crystal clear that the concept of liquidation is diametrically opposed or contrary to the concept of rehabilitation, such
that both cannot be undertaken at the same time. To allow the liquidation proceedings to continue would seriously
hinder the rehabilitation of the subject bank.

Anent the claim of respondents Central Bank and Liquidator of PVB that R.A. No. 7169 became effective only on March
10, 1992 or fifteen (15) days after its publication in the Official Gazette; and, the contention of intervenors VOP Security,
et. al. that the effectivity of said law is conditioned on the approval of a rehabilitation plan by the Monetary Board,
among others, the Court is of the view that both contentions are bereft of merit.

While as a rule, laws take effect after fifteen (15) days following the completion of their publication in the Official
Gazette or in a newspaper of general circulation in the Philippines, the legislature has the authority to provide for
exceptions, as indicated in the clause "unless otherwise provided."

In the case at bar, Section 10 of R.A. No. 7169 provides:

Sec. 10. Effectivity. - This Act shall take effect upon its approval.

Hence, it is clear that the legislature intended to make the law effective immediately upon its approval. It is undisputed
that R.A. No. 7169 was signed into law by President Corazon C. Aquino on January 2, 1992. Therefore, said law became
effective on said date.

Assuming for the sake of argument that publication is necessary for the effectivity of R.A. No. 7169, then it became
legally effective on February 24, 1992, the date when the same was published in the Official Gazette, and not on March
10, 1992, as erroneously claimed by respondents Central Bank and Liquidator.

29
WHEREFORE, in view of the foregoing, the instant petition is hereby GIVEN DUE COURSE and GRANTED. Respondent
Judge is hereby PERMANENTLY ENJOINED from further proceeding with Civil Case No. SP- 32311.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

* This case was transferred to the ponente pursuant to the resolution in AM No. 00-9-03-SC. Re: Creation of Special
Committee on Case Backlog dated February 27, 2001.

f. REPUBLIC VS PILIPINAS SHELL PETROLEUM CORPORATION (GR NO. 173918, APRIL 08, 2008)

G.R. No. 173918             April 8, 2008

REPUBLIC OF THE PHILIPPINES, represented by the DEPARTMENT OF ENERGY (DOE), petitioner, 

vs.
PILIPINAS SHELL PETROLEUM CORPORATION, respondent.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision dated 4 August 2006
of the Court of Appeals in C.A. G.R. SP No. 82183.1 The appellate court reversed the Decision2 dated 19 August 2003 of
the Office of the President in OP NO. Case 96-H-6574 and declared that Ministry of Finance (MOF) Circular No. 1-85 dated
15 April 1985, as amended, is ineffective for failure to comply with Section 3 of Chapter 2, Book 7 of the Administrative
Code of 1987,3 which requires the publication and filing in the Office of the National Administration Register (ONAR) of
administrative issuances. Thus, surcharges provided under the aforementioned circular cannot be imposed upon
respondent Pilipinas Shell Petroleum Corporation.

Respondent is a corporation duly organized existing under the laws of the Philippines. It is engaged in the business of
refining oil, marketing petroleum, and other related activities. 4

The Department of Energy (DOE) is a government agency under the direct control and supervision of the Office of the
President. The Department is mandated by Republic Act No. 7638 to prepare, integrate, coordinate, supervise and
control all plans, programs, projects and activities of the Government relative to energy exploration, development,
utilization, distribution and conservation.

On 10 October 1984, the Oil Price Stabilization Fund (OPSF) was created under Presidential Decree No. 1956 for the
purpose of minimizing frequent price changes brought about by exchange rate adjustments and/or increase in world
market prices of crude oil and imported petroleum products.5

Letter of Instruction No. 1431 dated 15 October 1984 was issued directing the utilization of the OPSF to reimburse oil
companies the additional costs of importation of crude oil and petroleum products due to fluctuation in foreign exchange
rates to assure adequate and continuous supply of petroleum products at reasonable prices. 6

Letter of Instruction No. 1441, issued on 20 November 1984, mandated the Board of Energy (now, the Energy Regulatory
Board) to review and reset prices of domestic oil products every two months to reflect the prevailing prices of crude oil
and petroleum. The prices were regulated by adjusting the OPSF impost, increasing or decreasing this price component
as necessary to maintain the balance between revenues and claims on the OPSF. 7

On 27 February 1987, Executive Order No. 137 was enacted to amend P. D. No. 1956. It expanded the sources and
utilization of the OPSF in order to maintain stability in the domestic prices of oil products at reasonable levels. 8

On 4 December 1991, the Office of Energy Affairs (OEA), now the DOE, informed the respondent that respondent’s
contributions to the OPSF for foreign exchange risk charge for the period December 1989 to March 1991 were
insufficient. OEA Audit Task Force noted a total underpayment of P14,414,860.75 by respondent to the OPSF. As a
consequence of the underpayment, a surcharge of P11,654,782.31 was imposed upon respondent. The said surcharge
was imposed pursuant to MOF Circular No. 1-85, as amended by Department of Finance (DOF) Circular No. 2-94, 9 which
provides that:

2. Remittance of payment to the OPSF as provided for under Section 5 of MOF Order No. 11-85 shall be made
not later than 20th of the month following the month of remittance of the foreign exchange payment for the
import or the month of payment to the domestic producers in the case of locally produced crude. Payment after
the specified date shall be subject to a surcharge of fifteen percent (15%) of the amount, if paid within thirty
(30) days from the due date plus two percent (2%) per month if paid after thirty days. 10 (Emphasis supplied.)

30
On 9 December 1991, the OEA wrote another letter 11 to respondent advising the latter of its additional underpayment to
the OPSF of the foreign exchange risk fee in the amount of P10,139,526.56 for the period April 1991 to October 1991. In
addition, surcharges in the amount of P2,806,656.65 were imposed thereon.

In a letter dated 20 January 1992 addressed to the OEA, respondent justified that its calculations for the transactions in
question were based on a valid interpretation of MOF Order NO. 11-85 dated 12 April 1985 and MOE Circular No. 85-05-
82 dated 16 May 1985.12

On 24 March 1992, respondent paid the OEA in full the principal amount of its underpayment, totaling P24,554,387.31,
but not the surcharges.13

In a letter14 dated 15 March 1996, OEA notified the respondent that the latter is required to pay the OPSF a total amount
of P18,535,531.40 for surcharges on the late payment of foreign exchange risk charges for the period December 1989 to
October 1991.

In a letter15 dated 11 July 1996, the DOE reiterated its demand for respondent to settle the surcharges due. Otherwise,
the DOE warned that it would proceed against the respondent’s Irrevocable Standby Letter of Credit to recover its
unpaid surcharges.

On 19 July 1996, respondent filed a Notice of Appeal before the Office of the President. The Office of the President
affirmed the conclusion of the DOE, contained in its letters dated 15 March 1996 and 11 July 1996. While it admitted that
the implementation of MOF Circular No. 1-85 is contingent upon its publication and filing with the ONAR, it noted that
respondent failed to adduce evidence of lack of compliance with such requirements. The aforementioned Decision
reads:16

Given the foregoing, the DOE’s implementation of MOF Circular 1-85 by imposing surcharges on Pilipinas Shell
is only proper. Like this Office, the DOE is bound to presume the validity of that administrative regulation.

WHEREFORE, premises considered, the Decision of the Department of Energy, contained in its letters dated 15
March 1996 and 11 July 1996, is hereby AFFIRMED in toto.

Respondent filed a Motion for Reconsideration of the Decision dated 19 August 2003 of the Office of the President, which
was denied on 28 November 2003.17

Respondent filed an appeal before the Court of Appeals wherein it presented Certifications dated 9 February 2004 18and
11 February 200419 issued by ONAR stating that DOF Circular No. 2-94 and MOF Circular No. 1-85 respectively, have not
been filed before said office.

The Court of Appeals reversed the Decision of the Office of the President in O.P. CASE No. 96-H-6574 and ruled that MOF
Circular 1-85, as amended, was ineffective for failure to comply with the requirement to file with ONAR. It decreed that
even if the said circular was issued by then Acting Minister of Finance Alfredo de Roda, Jr. long before the Administrative
Code of 1987, Section 3 of Chapter 2, Book 7 thereof specifies that rules already in force on the date of the effectivity of
the Administrative Code of 1987 must be filed within three months from the date of effectivity of said Code, otherwise
such rules cannot thereafter be the basis of any sanction against any party or persons. 20According to the dispositive of
the appellate court’s Decision:21

WHEREFORE, the instant petition is hereby GRANTED. The Decision dated August 19, 2003 and the
Resolution dated November 28, 2003 of the Office of the President, are hereby REVERSED.

ACCORDINGLY, the imposition of surcharges upon petitioner is hereby declared without legal basis.

On 25 September 2006, petitioner filed the present Petition for Review on Certiorari, wherein the following issues were
raised:22

THE SURCHARGE IMPOSED BY MINISTRY OF FINANCE (MOF) CIRCULAR No. 1-85 HAS BEEN AFFIRMED BY E.O.
NO. 137 HAVING RECEIVED VITALITY FROM A LEGISLATIVE ENACTMENT, MOF CIRCULAR NO. 1-85 CANNOT BE
RENDERED INVALID BY THE SUBSEQUENT ENACTMENT OF A LAW REQUIRING REGISTRATION OF THE MOF
CIRCULAR WITH THE OFFICE OF THE NATIONAL REGISTER

II

ASSUMING THAT THE REGISTRATION OF MOF NO. 1-85 IS REQUIRED, RESPONDENT WAIVED ITS OBJECTION ON
THE BASIS OF NON-REGISTRATION WHEN IT PAID THE AMOUNT REQUIRED BY PETITIONER.

This petition is without merit.

31
As early as 1986, this Court in Tañada v. Tuvera23 enunciated that publication is indispensable in order that all statutes,
including administrative rules that are intended to enforce or implement existing laws, attain binding force and effect, to
wit:

We hold therefore that all statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is
fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the
exercise of legislative powers whenever the same are validly delegated by the legislature or, at present,
directly conferred by the Constitution. Administrative rules and regulations must also be published if
their purpose is to enforce or implement existing law pursuant also to a valid delegation. (Emphasis
provided.)

Thereafter, the Administrative Code of 1987 was enacted, with Section 3 of Chapter 2, Book VII thereof specifically
providing that:

Filing. — (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of
every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed
within three (3) months from the date shall not thereafter be the basis of any sanction against any
party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this
section under pain of disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection.
(Emphasis provided.)

Under the doctrine of Tanada v. Tuvera,24 the MOF Circular No. 1-85, as amended, is one of those issuances which should
be published before it becomes effective since it is intended to enforce Presidential Decree No. 1956. The said circular
should also comply with the requirement stated under Section 3 of Chapter 2, Book VII of the Administrative Code of
1987 – filing with the ONAR in the University of the Philippines Law Center – for rules that are already in force at the time
the Administrative Code of 1987 became effective. These requirements of publication and filing were put in place as
safeguards against abuses on the part of lawmakers and as guarantees to the constitutional right to due process and to
information on matters of public concern and, therefore, require strict compliance.

In the present case, the Certifications dated 11 February 2004 25 and 9 February 200426 issued by ONAR prove that MOF
Circular No. 1-85 and its amendatory rule, DOF Circular No. 2-94, have not been filed before said office. Moreover,
petitioner was unable to controvert respondent’s allegation that neither of the aforementioned circulars were published
in the Official Gazette or in any newspaper of general circulation. Thus, failure to comply with the requirements of
publication and filing of administrative issuances renders MOF Circular No. 1-85, as amended, ineffective.

In National Association of Electricity Consumers for Reforms v. Energy Regulatory Board,27 this Court emphasized that
both the requirements of publication and filing of administrative issuances intended to enforce existing laws are
mandatory for the effectivity of said issuances. In support of its ruling, it specified several instances wherein this Court
declared administrative issuances, which failed to observe the proper requirements, to have no force and effect:

Nowhere from the above narration does it show that the GRAM Implementing Rules was published in the Official
Gazette or in a newspaper of general circulation. Significantly, the effectivity clauses of both the GRAM and
ICERA Implementing Rules uniformly provide that they "shall take effect immediately." These clauses made no
mention of their publication in either the Official Gazette or in a newspaper of general circulation. Moreover, per
the Certification dated January 11, 2006 of the Office of the National Administrative Register (ONAR), the said
implementing rules and regulations were not likewise filed with the said office in contravention of the
Administrative Code of 1987.

Applying the doctrine enunciated in Tañada v. Tuvera, the Court has previously declared as having no force and
effect the following administrative issuances: (1) Rules and Regulations issued by the Joint Ministry of Health-
Ministry of Labor and Employment Accreditation Committee regarding the accreditation of hospitals, medical
clinics and laboratories; (2) Letter of Instruction No. 1416 ordering the suspension of payments due and
payable by distressed copper mining companies to the national government; (3) Memorandum Circulars issued
by the Philippine Overseas Employment Administration regulating the recruitment of domestic helpers to Hong
Kong; (4) Administrative Order No. SOCPEC 89-08-01 issued by the Philippine International Trading Corporation
regulating applications for importation from the People’s Republic of China; (5) Corporation Compensation
Circular No. 10 issued by the Department of Budget and Management discontinuing the payment of other
allowances and fringe benefits to government officials and employees; and (6) POEA Memorandum Circular No.
2 Series of 1983 which provided for the schedule of placement and documentation fees for private employment
agencies or authority holders.

In all these cited cases, the administrative issuances questioned therein were uniformly struck down as they
were not published or filed with the National Administrative Register. On the other hand, in Republic v. Express
Telecommunications Co., Inc, the Court declared that the 1993 Revised Rules of the National
Telecommunications Commission had not become effective despite the fact that it was filed with the National
Administrative Register because the same had not been published at the time. The Court emphasized therein
32
 that "publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before
statutes, rules or regulations can take effect."

Petitioner’s argument that respondent waived the requisite registration of MOF Circular No. 1-85, as amended, when it
paid in full the principal amount of underpayment totaling P24,544,387.31, is specious. MOF Circular No. 1-85, as
amended imposes surcharges, while respondents’ underpayment is based on MOF Circular No. 11-85 dated 12 April
1985.

Petitioner also insists that the registration of MOF Circular No. 1-85, as amended, with the ONAR is no longer necessary
since the respondent knew of its existence, despite its non-registration. This argument is seriously flawed and contrary
to jurisprudence. Strict compliance with the requirements of publication cannot be annulled by a mere allegation that
parties were notified of the existence of the implementing rules concerned. Hence, also in National Association of
Electricity Consumers for Reforms v. Energy Regulatory Board, this Court pronounced:

In this case, the GRAM Implementing Rules must be declared ineffective as the same was never published or
filed with the National Administrative Register. To show that there was compliance with the publication
requirement, respondents MERALCO and the ERC dwell lengthily on the fact that parties, particularly the
distribution utilities and consumer groups, were duly notified of the public consultation on the ERC’s proposed
implementing rules. These parties participated in the said public consultation and even submitted their
comments thereon.

However, the fact that the parties participated in the public consultation and submitted their
respective comments is not compliance with the fundamental rule that the GRAM Implementing
Rules, or any administrative rules whose purpose is to enforce or implement existing law, must be
published in the Official Gazette or in a newspaper of general circulation. The requirement of
publication of implementing rules of statutes is mandatory and may not be dispensed with altogether even if,
as in this case, there was public consultation and submission by the parties of their comments. 28 (Emphasis
provided.)

Petitioner further avers that MOF Circular No. 1-85, as amended, gains its vitality from the subsequent enactment of
Executive Order No. 137, which reiterates the power of then Minister of Finance to promulgate the necessary rules and
regulations to implement the executive order. Such contention is irrelevant in the present case since the power of the
Minister of Finance to promulgate rules and regulations is not under dispute. The issue rather in the Petition at bar is the
ineffectivity of his administrative issuance for non-compliance with the requisite publication and filing with the ONAR.
And while MOF Circular No. 1-85, as amended, may be unimpeachable in substance, the due process requirements of
publication and filing cannot be disregarded. Moreover, none of the provisions of Executive Order No. 137 exempts MOF
Circular No. 1-85, as amended from the aforementioned requirements.

IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision dated 4 August 2006 of the
Court of Appeals in C.A. G.R. SP No. 82183 is AFFIRMED. No cost.

SO ORDERED.

Austria-Martinez, Acting Chairperson, Carpio-Morales*, Tinga*, Reyes, JJ., concur.

g. MANNER OF COMPUTING TIME

 RULE 22 : COMPUTATION OF TIME
 Section 1. How to compute time.
 In computing any period of time prescribed or allowed by these Rules, or by order of
the court, or by any applicable statute, the day of the act or event from which the
designated period of time begins to run is to be excluded and the date of
performance included. If the last day of the period, as thus computed, falls on a
Saturday, a Sunday, or a legal holiday in the place where the court sits, the time
shall not run until the next working day.
 Sec. 2. Effect of interruption.
 Should an act be done which effectively interrupts the running of the period, the
allowable period after such interruption shall start to run on the day after notice of
the cessation of the cause thereof.
 The day of the act that caused the interruption shall be excluded in the computation
of the period.

h. ARTICLE 13, CIVIL CODE

 When the laws speak of years, months, days or nights, it shall be understood that years are of
three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and
nights from sunset to sunrise.

i. PNB VS CA (222 SCRA 134, 1993)

G.R. No. 97995 January 21, 1993

33
PHILIPPINE NATIONAL BANK, petitioner, 
vs.
COURT OF APPEALS AND B.P. MATA AND CO., INC., respondents.

Roland A. Niedo for petitioner.

Benjamin C. Santos Law Office for respondent.

ROMERO, J.:

Rarely is this Court confronted with a case calling for the delineation in broad strokes of the distinctions between such
closely allied concepts as the quasi-contract called "solutio indebiti" under the venerable Spanish Civil Code and the
species of implied trust denominated "constructive trusts," commonly regarded as of Anglo-American origin. Such a case
is the one presented to us now which has highlighted more of the affinity and less of the dissimilarity between the two
concepts as to lead the legal scholar into the error of interchanging the two. Presented below are the factual
circumstances that brought into juxtaposition the twin institutions of the Civil Law quasi-contract and the Anglo-
American trust.

Private Respondent B.P. Mata & Co. Inc. (Mata), is a private corporation engaged in providing goods and services to
shipping companies. Since 1966, it has acted as a manning or crewing agent for several foreign firms, one of which is
Star Kist Foods, Inc., USA (Star Kist). As part of their agreement, Mata makes advances for the crew's medical expenses,
National Seaman's Board fees, Seaman's Welfare fund, and standby fees and for the crew's basic personal needs.
Subsequently, Mata sends monthly billings to its foreign principal Star Kist, which in turn reimburses Mata by sending a
telegraphic transfer through banks for credit to the latter's account.

Against this background, on February 21, 1975, Security Pacific National Bank (SEPAC) of Los Angeles which had an
agency arrangement with Philippine National Bank (PNB), transmitted a cable message to the International Department
of PNB to pay the amount of US$14,000 to Mata by crediting the latter's account with the Insular Bank of Asia and
America (IBAA), per order of Star Kist. Upon receipt of this cabled message on February 24, 1975, PNB's International
Department noticed an error and sent a service message to SEPAC Bank. The latter replied with instructions that the
amount of US$14,000 should only be for US$1,400.

On the basis of the cable message dated February 24, 1975 Cashier's Check No. 269522 in the amount of US$1,400
(P9,772.95) representing reimbursement from Star Kist, was issued by the Star Kist for the account of Mata on February
25, 1975 through the Insular Bank of Asia and America (IBAA).

However, fourteen days after or on March 11, 1975, PNB effected another payment through Cashier's Check No. 270271
in the amount of US$14,000 (P97,878.60) purporting to be another transmittal of reimbursement from Star Kist, private
respondent's foreign principal.

Six years later, or more specifically, on May 13, 1981, PNB requested Mata for refund of US$14,000 (P97,878.60) after it
discovered its error in effecting the second payment.

On February 4, 1982, PNB filed a civil case for collection and refund of US$14,000 against Mata arguing that based on a
constructive trust under Article 1456 of the Civil Code, it has a right to recover the said amount it erroneously credited
to respondent Mata.1

After trial, the Regional Trial Court of Manila rendered judgment dismissing the complaint ruling that the instant case
falls squarely under Article 2154 on solutio indebiti and not under Article 1456 on constructive trust. The lower court
ruled out constructive trust, applying strictly the technical definition of a trust as "a right of property, real or personal,
held by one party for the benefit of another; that there is a fiduciary relation between a trustee and a cestui que trust as
regards certain property, real, personal, money or choses in action." 2

In affirming the lower court, the appellate court added in its opinion that under Article 2154 on solutio indebiti, the
person who makes the payment is the one who commits the mistake vis-a-vis the recipient who is unaware of such a
mistake.3 Consequently, recipient is duty bound to return the amount paid by mistake. But the appellate court concluded
that petitioner's demand for the return of US$14,000 cannot prosper because its cause of action had already prescribed
under Article 1145, paragraph 2 of the Civil Code which states:

The following actions must be commenced within six years:

xxx xxx xxx

(2) Upon a quasi-contract.

This is because petitioner's complaint was filed only on February 4, 1982, almost seven years after March 11,
1975 when petitioner mistakenly made payment to private respondent.

34
Hence, the instant petition for certiorari proceeding seeking to annul the decision of the appellate court on the basis that
Mata's obligation to return US$14,000 is governed, in the alternative, by either Article 1456 on constructive trust or
Article 2154 of the Civil Code on quasi-contract. 4

Article 1456 of the Civil Code provides:

If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered
a trustee of an implied trust for the benefit of the person from whom the property comes.

On the other hand, Article 2154 states:

If something is received when there is no right to demand it, and it was unduly delivered through
mistake, the obligation to return it arises.

Petitioner naturally opts for an interpretation under constructive trust as its action filed on February 4, 1982 can still
prosper, as it is well within the prescriptive period of ten (10) years as provided by Article 1144, paragraph 2 of the Civil
Code.5

If it is to be construed as a case of payment by mistake or solutio indebiti, then the prescriptive period for quasi-
contracts of six years applies, as provided by Article 1145. As pointed out by the appellate court, petitioner's cause of
action thereunder shall have prescribed, having been brought almost seven years after the cause of action accrued.
However, even assuming that the instant case constitutes a constructive trust and prescription has not set in, the
present action has already been barred by laches.

To recall, trusts are either express or implied. While express trusts are created by the intention of the trustor or of the
parties, implied trusts come into being by operation of law. 6 Implied trusts are those which, without being expressed, are
deducible from the nature of the transaction as matters of intent or which are superinduced on the transaction by
operation of law as matters of equity, independently of the particular intention of the parties. 7

In turn, implied trusts are subdivided into resulting and constructive trusts. 8 A resulting trust is a trust raised by
implication of law and presumed always to have been contemplated by the parties, the intention of which is found in the
nature of the transaction, but not expressed in the deed or instrument of conveyance. 9 Examples of resulting trusts are
found in Articles 1448 to 1455 of the Civil Code. 10 On the other hand, a constructive trust is one not created by words
either expressly or impliedly, but by construction of equity in order to satisfy the demands of justice. An example of a
constructive trust is Article 1456 quoted above. 11

A deeper analysis of Article 1456 reveals that it is not a trust in the technical sense 12 for in a typical trust, confidence is
reposed in one person who is named a trustee for the benefit of another who is called the cestui que trust, respecting
property which is held by the trustee for the benefit of the cestui que trust.13 A constructive trust, unlike an express
trust, does not emanate from, or generate a fiduciary relation. While in an express trust, a beneficiary and a trustee are
linked by confidential or fiduciary relations, in a constructive trust, there is neither a promise nor any fiduciary relation to
speak of and the so-called trustee neither accepts any trust nor intends holding the property for the beneficiary. 14

In the case at bar, Mata, in receiving the US$14,000 in its account through IBAA, had no intent of holding the same for a
supposed beneficiary or cestui que trust, namely PNB. But under Article 1456, the law construes a trust, namely a
constructive trust, for the benefit of the person from whom the property comes, in this case PNB, for reasons of justice
and equity.

At this juncture, a historical note on the codal provisions on trust and quasi-contracts is in order.

Originally, under the Spanish Civil Code, there were only two kinds of quasi contracts: negotiorum gestio and solutio
indebiti. But the Code Commission, mindful of the position of the eminent Spanish jurist, Manresa, that "the number of
quasi contracts may be indefinite," added Section 3 entitled "Other Quasi-Contracts." 15

Moreover, even as Article 2142 of the Civil Code defines a quasi-contract, the succeeding article provides that: "The
provisions for quasi-contracts in this Chapter do not exclude other quasi-contracts which may come within the purview of
the preceding article." 16

Indubitably, the Civil Code does not confine itself exclusively to the quasi-contracts enumerated from Articles 2144 to
2175 but is open to the possibility that, absent a pre-existing relationship, there being neither crime nor quasi-delict, a
quasi-contractual relation may be forced upon the parties to avoid a case of unjust enrichment. 17 There being no express
consent, in the sense of a meeting of minds between the parties, there is no contract to speak of. However, in view of
the peculiar circumstances or factual environment, consent is presumed to the end that a recipient of benefits or favors
resulting from lawful, voluntary and unilateral acts of another may not be unjustly enriched at the expense of another.

Undoubtedly, the instant case fulfills the indispensable requisites of solutio indebiti as defined in Article 2154 that
something (in this case money) has been received when there was no right to demand it and (2) the same was unduly
delivered through mistake. There is a presumption that there was a mistake in the payment "if something which had
never been due or had already been paid was delivered; but he from whom the return is claimed may prove that the
delivery was made out of liberality or for any other just cause." 18

35
In the case at bar, a payment in the corrected amount of US$1,400 through Cashier's Check No. 269522 had already
been made by PNB for the account of Mata on February 25, 1975. Strangely, however, fourteen days later, PNB effected
another payment through Cashier's Check No. 270271 in the amount of US$14,000, this time purporting to be another
transmittal of reimbursement from Star Kist, private respondent's foreign principal.

While the principle of undue enrichment or solutio indebiti, is not new, having been incorporated in the subject on quasi-
contracts in Title XVI of Book IV of the Spanish Civil Code entitled "Obligations incurred without contract," 19the chapter
on Trusts is fairly recent, having been introduced by the Code Commission in 1949. Although the concept of trusts is
nowhere to be found in the Spanish Civil Code, the framers of our present Civil Code incorporated implied trusts, which
includes constructive trusts, on top of quasi-contracts, both of which embody the principle of equity above strict
legalism.20

In analyzing the law on trusts, it would be instructive to refer to Anglo-American jurisprudence on the subject. Under
American Law, a court of equity does not consider a constructive trustee for all purposes as though he were in reality a
trustee; although it will force him to return the property, it will not impose upon him the numerous fiduciary obligations
ordinarily demanded from a trustee of an express trust. 21 It must be borne in mind that in an express trust, the trustee
has active duties of management while in a constructive trust, the duty is merely to surrender the property.

Still applying American case law, quasi-contractual obligations give rise to a personal liability ordinarily enforceable by
an action at law, while constructive trusts are enforceable by a proceeding in equity to compel the defendant to
surrender specific property. To be sure, the distinction is more procedural than substantive. 22

Further reflection on these concepts reveals that a constructive "trust" is as much a misnomer as a "quasi-contract," so
far removed are they from trusts and contracts proper, respectively. In the case of a constructive trust, as in the case of
quasi-contract, a relationship is "forced" by operation of law upon the parties, not because of any intention on their part
but in order to prevent unjust enrichment, thus giving rise to certain obligations not within the contemplation of the
parties.23

Although we are not quite in accord with the opinion that "the trusts known to American and English equity
jurisprudence are derived from the fidei commissa of the Roman Law,"24 it is safe to state that their roots are firmly
grounded on such Civil Law principles are expressed in the Latin maxim, "Nemo cum alterius detrimento locupletari
potest," 25 particularly the concept of constructive trust.

Returning to the instant case, while petitioner may indeed opt to avail of an action to enforce a constructive trust or the
quasi-contract of solutio indebiti, it has been deprived of a choice, for prescription has effectively blocked quasi-contract
as an alternative, leaving only constructive trust as the feasible option.

Petitioner argues that the lower and appellate courts cannot indulge in semantics by holding that in Article 1456 the
recipient commits the mistake while in Article 2154, the recipient commits no mistake. 26 On the other hand, private
respondent, invoking the appellate court's reasoning, would impress upon us that under Article 1456, there can be no
mutual mistake. Consequently, private respondent contends that the case at bar is one of solutio indebiti and not a
constructive trust.

We agree with petitioner's stand that under Article 1456, the law does not make any distinction since mutual mistake is
a possibility on either side — on the side of either the grantor or the grantee. 27 Thus, it was error to conclude that in a
constructive trust, only the person obtaining the property commits a mistake. This is because it is also possible that a
grantor, like PNB in the case at hand, may commit the mistake.

Proceeding now to the issue of whether or not petitioner may still claim the US$14,000 it erroneously paid private
respondent under a constructive trust, we rule in the negative. Although we are aware that only seven (7) years lapsed
after petitioner erroneously credited private respondent with the said amount and that under Article 1144, petitioner is
well within the prescriptive period for the enforcement of a constructive or implied trust, we rule that petitioner's claim
cannot prosper since it is already barred by laches. It is a well-settled rule now that an action to enforce an implied trust,
whether resulting or constructive, may be barred not only by prescription but also by laches. 28

While prescription is concerned with the fact of delay, laches deals with the effect of unreasonable delay. 29 It is amazing
that it took petitioner almost seven years before it discovered that it had erroneously paid private respondent. Petitioner
would attribute its mistake to the heavy volume of international transactions handled by the Cable and Remittance
Division of the International Department of PNB. Such specious reasoning is not persuasive. It is unbelievable for a bank,
and a government bank at that, which regularly publishes its balanced financial statements annually or more frequently,
by the quarter, to notice its error only seven years later. As a universal bank with worldwide operations, PNB cannot
afford to commit such costly mistakes. Moreover, as between parties where negligence is imputable to one and not to
the other, the former must perforce bear the consequences of its neglect. Hence, petitioner should bear the cost of its
own negligence.

WHEREFORE, the decision of the Court of Appeals dismissing petitioner's claim against private respondent is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Bidin, Davide, Jr. and Melo, JJ., concur.

36
Gutierrez, Jr., J., concurs in the result.

j. VIR-JEN VS NLRC (15 SCRA 347, 1982)

.R. No. L-58011-12 July 20, 1982

VIR-JEN SHIPPING AND MARINE SERVICES, INC., petitioner, 

vs.
NATIONAL LABOR RELATIONS COMMISSION, ROGELIO BISULA, RUBEN ARROZA, JUAN GACUTNO, LEONILO
ATOK, NILO CRUZ, ALVARO ANDRADA, NEMESIO ADUG, SIMPLICIO BAUTISTA, ROMEO ACOSTA, and JOSE
ENCABO, respondents.

Maximo A. Savellano, Jr., for petitioner.

Solicitor General and Romeo M. Devera for respondents.

BARREDO, J.:

Petition for certiorari seeking the annulment or setting aside, on the grounds of excess of jurisdiction and grave abuse of
discretion, of the decision of the National Labor Relations Commission in consolidated NSB Cases Nos. 2250-79 and
2252-79 thereof, 1 the dispositive portion of which reads thus:

WHEREFORE, the Decision appealed from should be, as it is hereby modified in this wise:

Respondent Vir-jen Shipping and Marine Services, Inc., is hereby ordered to pay the following to the
complainant Seamen who have not withdrawn from the case, namely: Capt. Rogelio H. Bisula, Ruben
Arroza, Juan Gacutno, Leonilo Atok, Nilo Cruz, Alvaro Andrada, Nemesio Adug, Simplicio Bautista,
Romeo Acosta and Jose Encabo:

1. their earned wages corresponding to the period from 16 to 19 April 1979;

2. the wages corresponding to the unexpired portion of their contracts, as adjusted

by the respondent Company effective 1 March 1979;

3. the adjusted representation allowances of the complainant Seamen who served as

officers and who have not withdrawn from the case, namely: Capt. Rogelio Bisula,
Ruben Arroza, Juan Gacutno, Leonilo Atok and Nilo Cruz;

4. their vacation pay equivalent to one-half (½) month's pay after six (6) months of
service and another one-half (½) month's pay after the completion of the one-year
contract;

5. their tanker service bonus equivalent to one-half (½) month's pay; and

6. their earned overtime pay from l to l9 April 1979.

The Secretariat of the National Seamen Board is also hereby directed to issue within five (5) days from
receipt of this Decision the necessary clearances to the suspended Seamen. (pp. 86-87, Record.)

The factual and legal background of these cases is related most comprehensively in the "Manifestation and Comment"
filed by the Solicitor General. It is as follows:

The records show that private respondents have a manning contract for a period of one (1) year with
petitioner in representation of its principal Kyoei Tanker Co. Ltd. The terms and conditions of said
contract were based on the standard contract of the NSB. The manning contract was approved by the
NSB. Aware of the problem that vessels not paying rates imposed by the International Transport
Workers Federation (ITF) would be detained or interdicted in foreign ports controlled by the ITF,
petitioner and private respondents executed a side contract to the effect that should the vessel M/T
Jannu be required to pay ITF rates when it calls on any ITF controlled foreign port, private respondents
would return to petitioner the amounts so paid to them.

On March 23, 1979, the master of the vessel who is one of the private respondents sent a cable to
petitioner, while said vessel was en route to Australia which is an ITF controlled port, stating that
private respondents were not contented with the salary and benefits stipulated in the manning
contract, and demanded that they be given 50% increase thereof, as the "best and only solution to
37
solve ITF problem." Apparently, reference to "ITF" in private respondents' cable made petitioner
apprehensive since the vessel at that time was en route to Australia, an ITF port, and would be
interdicted and detained thereat, should private respondents denounce the existing manning contract
to the ITF and should petitioner refuse or be unable to pay the ITF rates, which represent more than
100% of what is stipulated in the manning contract. Placed under such situation, petitioner replied by
cable dated March 24, 1979 to private respondents, as follows:

... WE ARE SURPRISED WITH THIS SUDDEN CHANGE OF ATTITUDE AND DEMANDS
FOR WE HAVE THOROUGHLY EXPLAINED AND DISCUSSED ALL MATTERS PERTAINING
TO YOUR PRESENT EMPLOYMENT AND BELIEVED THAT WE FULLY UNDERSTOOD
EACH OTHER ... WE SHALL SUFFER AND ABSORB CONSIDERABLE AMOUNT OF
LOSSES WITH YOUR DEMAND OF FIFTY PERCENT AS WE ARE ALREADY COMMITTED
TO PRINCIPALS THEREFORE TO MINIMIZE OUR LOSSES WE PROPOSE AN INCREASE
OF TWENTY FIVE PERCENT ON YOUR BASIC PAYS PLUS THE SPECIAL COMPENSATION
FOR THIS PARTICULAR VOYAGE ... (p. 7 Comment)

On March 26, 1979, petitioner wrote a letter to the NSB denouncing the conduct of private
respondents as follows:

This is to inform you that on March 24, 1979, we received a cable from Capt. Rogelio Bisula, Master of
the above-reference vessel reading as follows:

URINFO ENTIRE JANNU OFFICERS AND CREW NOT CONTENTED WITH PRESENT
SALARY BASED ON VOLUME OF WORK TYPE OF SHIP WITH HAZARDOUS CARGO AND
REGISTERED IN A WORLDWIDE TRADE STOP WHAT WE DEMAND IS ONLY FIFTY
PERCENT INCREASE BASED ON PRESENT BASIC SALARY STOP THIS DEMAND THE
BEST AND ONLY SOLUTION TO SOLVE PROBLEM DUE YOUR PRESENT RATES
ESPECIALLY TANKERS VERY FAR IN COMPARISON WITH OTHER SHIPPING AGENCIES
IN MANILA.

to which we replied on March 24, 1979, as follows:

WE ARE SURPRISED WITH SUDDEN CHANGE, OF ATTITUDE AND DEMANDS FOR WE

HAVE THOROUGHLY EXPLAINED AND DISCUSSED ALL MATTERS PERTAINING TO
YOUR PRESENT EMPLOYMENT AND BELIEVED THAT WE FULLY UNDERSTOOD EACH
OTHER STOP FRANKLY SPEAKING WE SHALL SUFFER AND ABSORB CONSIDERABLE
AMOUNT OF LOSSES WITH YOUR DEMAND OF FIFTY PERCENT AS WE ARE
COMMITTED TO PRINCIPALS THEREFORE TO MINIMIZE OUR LOSSES WE PROPOSE AN
INCREASE OF TWENTY FIVE PERCENT ON YOUR BASIC PAY STOP YOUR
UNDERSTANDING AND FULL COOPERATION WILL BE VERY MUCH APPRECIATED STOP
PLS CONFIRM SOONEST.

On March 25, 1979 we received the following communication from the Master of said vessel:

OFFICERS AND CREW HESITATING TO GIVE UP DEMAND OF FIFTY PERCENT INCREASE

BUT FOR THE GOOD AND HARMONIOUS RELATIONSHIP ON BOARD AND
RECONSIDERING YOUR SUPPOSED TO BE LOSSES IN CASE WE CONDITIONALLY
COOPERATE WITH YOUR PROPOSED INCREASE AND TWENTY FIVE PERCENT BASED
ON INDIVIDUAL BASIC PAY WITH THE FOLLOWING TERMS AND CONDITION STOP
EFFECTIVITY OF TWENTY FIVE PERCENT INCREASE MUST BE MARCH/79 STOP
INCREASE MUST BE COLLECTIBLE ON BOARD EFFECTIVE ABOVE DATE UNTIL
DISEMBARKATION STOP ALLOTMENT TO ALLOTEES REMAIN AS IS STOP REASONABLE
REPALLOWS FOR ALL OFFICERS BE GIVEN EFFECTIVE MARCH/79 STOP BONUS FOR 6
MONTHS SERVICES RENDERED BE COLLECTIBLE ON BOARD STOP OFFICERS/CREW
30PCT O/T SHUD BE BASED NEW UPGRADED SALARY SCALE STOP
MASTER/CHENGR/CHMATE SPECIAL COMPENSATION GIVE BY YOUR COMPANY PRIOR
DEPARTURE MANILA REMAIN AS IS.

to which we replied on March 25, 1979, as follows:

WE AGREE ALL CONDITIONS AND CONFIRM IT SHALL BE PROPERLY ENFORCED STOP

WILL PREPARE ALL REQUIRED DOCUMENTS AND WILL BE DELIVERED ON BOARD.

For your further information and guidance, the abovementioned demands of the officers and crew
(25% increase in basic pay, increase in overtime pay and increase in representation allowance) involve
an additional amount of US$3,096.50 per month, which our company is not in a position to shoulder.

We are, therefore, negotiating with our Principals, Messrs. Kyoei Tanker Company, Limited, for the
amendment of our agency agreement in the sense that our monthly fee be increased correspondingly.
We have sent our Executive Vice-President, Mr. Ericson M. Marquez, to Japan to represent us in said
negotiation and we will inform you of the results thereof. (Annex "E" of Petition)

38
In view of private respondents' conduct and breach of contract, petitioner's principal, Kyoei Tanker Co.,
Ltd. terminated the manning contract in a letter dated April 4, 1979, which reads in part;

This is with reference to your letter of March 26, 1979 and our conference with Mr.
Ericson Marquez in Tokyo on March 29, 1979, regarding the unexpected and
unreasonable demand for salary increase of your officers and crew on the above
vessel.

Frankly speaking, we fully agree with you that this action taken by your officers and
crew in demanding increase in their salaries and overtime after being on board for
only three months was very unreasonable. Considering the circumstances when the
demand was made, we believe that their action was definitely abusive and plain
blackmail.

We regret to advise you that since this vessel is only under our management, we
also cannot afford to grant your request for an increase of US$3,096.50 effective
March 1, 1979, as demanded by your crew. Your crew should respect their
employment contracts which was approved by your government and your National
Seamen Board should make sure that all seamen should follow their contracts.

For your information, we have discussed this matter with the owners of the vessel,
particularly the attitude and mentality of your crew on board. Our common and final
decision is not to grant your request but also to terminate our Manning Agreement
effective upon crew's change when the vessel arrives at Japan or at any possible port
about end April, 1979.

We regret that we have to take this drastic step in order to protect ourselves from
further problem if we continue with your present officers and crew because if their
demand is granted, there is no guarantee that they will not demand further increase
in salaries in the future when they have chance. Also, as you know the present
freight market is very bad and we cannot afford an unexpected increase in cost of
operations and more so with a troublesome and unreliable crew that you have on
board.

In view of the circumstances mentioned above, please consider this letter as our
official notice of cancellation of our Manning Agreement effective upon the date of
crew's change. (Annex "F" of Petition).

On April 6, 1979, petitioner wrote the NSB asking permission to cancel the manning contract with
petitioner, said letter reading as follows:

This is with reference to our letter of March 26, 1979, informing you of the sudden
and unexpected demands of the officers and crew of the above vessel for a twenty
five percent (25%) increase in their basic salaries and overtime, plus an increase of
the officers' representation allowances, involving a total of US$3,096.50 per month.

As we have advised in our afore-mentioned letter, we have negotiated with our

Principals, Messrs. Kyoei Tanker Co., Ltd., to amend our Agency Agreement by
increasing our monthly fee by US$3,096.50, and attached herewith is copy of our
letter dated March 26, 1979 duly received by our Principals on March 31, 1979.

In this connection, we wish to inform your good office that our Principals have
refused to consider our request for an increase and have also advised us of their
final decision to terminate our Manning Agreement effective upon vessel's arrival in
Japan on or about April 17, 1979.

For your further information, we enclose herewith xerox copy of the Kyoei Tanker
Co., Ltd. letter dated April 4, 1979, which we just received today via airfreight.

This is the first time that a cancellation of this nature has been made upon us, and
needless to say, we feel very embarrassed and disappointed but we have no other
alternative but to accept the said cancellation.

In view of the foregoing, we respectfully request your authority to cancel our

Contracts of Employment and to disembark the entire officers and crew upon
vessel's arrival in Japan on or about 17th April, 1979. (Annex "G", of Petition).

On April 10, 1979, the NSB through its Executive Director Cresencio C. Dayao wrote petitioner
authorizing it to cancel the manning contract. The NSB letter to petitioner reads:

39
 We have for acknowledgment your letter of 6 April 1979 in connection with the
above-captioned subject.

Considering the circumstances enumerated in your letter under reply (and also in
your letter of March 1979), we authorize you to cancel your contracts of employment
with the crew/members of the M/T "Jannu" and you may now disembark the whole
compliment upon the vessel's arrival in Japan on or about April 17, 1979.

We trust that you will not encounter any difficulty in connection with the
disembarkation of the crew/members. (Annex "H" of Petition).

The seamen were accordingly disembarked in Japan and repatriated to Manila. They then filed a
complaint with the NSB for illegal dismissal and non-payment of wages. After trial, the NSB found that
the termination of the services of the seamen before the expiration of their employment contract was
justified "when they demanded and in fact received from the company wages over and above the
contracted rates which in effect was an alteration and modification of a valid and existing contract ..."
(Annex "D", Petition). The seamen appealed the decision to the NLRC which reversed the decision of
the NSB and required the petitioner to pay the wages and other monetary benefits corresponding to
the unexpired portion of the manning contract on the ground that the termination of the said contract
by petitioner was without valid cause. Hence, the present petition. (Pp. 2-9, Manifestation & Comment)

In its petition which contains practically the same facts and circumstances above-quoted, petitioner submits for Our
resolution the following issues:

I. That the respondent NLRC acted without or in excess of its jurisdiction, or with grave abuse of
discretion in said NSB Cases Nos. 2250-79 and 2252-79 when it adjudged the petitioner Vir-jen liable to
the respondents-seamen for terminating its employment contracts with them despite the fact
that prior authorization to terminate or cancel said employment contracts and to disembark the said
respondents was first secured from and was granted by, the National Seamen Board, the government
agency primarily charged with the supervision and discipline of seamen and the approval and
enforcement of employment contracts;

II. That the respondent NLRC acted with grave abuse of discretion, or without or in excess of its
jurisdiction, or contrary to law and the evidence when it concluded that "there is nothing on record to
show that respondents-seamen made any threat that they would complain or report to the ITF their
low wage rates if their demand or proposal for a wage increase was not met", despite the fact that in
their cable of March 23, 1979 to the petitioner, the said respondents made the following threats and
impositions: "WHAT WE DEMAND IS ONLY 50 PERCENT INCREASE BASED ON PRESENT BASIC SALARY
STOP THIS DEMAND THE BEST AND ONLY SOLUTION TO SOLVE ITF PROBLEMS", that there are other
substantial and conclusive evidence to support the existence of such threats and intimidation which
the respondent NLRC failed and refused to consider; and that the evidence substantially and
conclusively shows that the petitioner Vir-jen was, in fact, threatened and intimidated into giving such
salary increases due to such cabled threats and intimidation of the private respondents;

III. That the respondent NLRC acted with grave abuse of discretion or without or in excess of
jurisdiction when it concluded, in effect, that the respondents-seamen acted within their rights when
they imposed upon their employer, the herein petitioner, their demands for salary and wages
increases, in disregard of their existing NSB-approved contracts of employment, notwithstanding the
substantial and conclusive findings of the NSB, the trier of facts which is in the best position to assess
the special circumstances of the case, that the said respondents breached their respective contracts of
employment with the petitioner, without securing the prior approval of the NSB as required by the New
Labor Code, as amended, and with the use of threats, intimidation and coercion, when they demanded
and, in fact, received from the petitioner salaries or wages over and above their contracted rates
which the petitioner was "constrained to make" in order "to prevent the vessel from being interdicted
and/or detained by the ITF because at the time the demand for salary increase was made the vessel
was en route to Kwinana, Australia (via Senipah, Indonesia), a port were the ITF is strong and militant,"
"for in the event the vessel would be detained and/or interdicted the company (petitioner) would suffer
more losses than paying the seamen 25 % increase of their salary";

IV. That respondent NLRC committed a grave abuse of discretion or exceeded its jurisdiction or acted
contrary to law when it failed and refused to admit and take into account the ADDENDUM AGREEMENT,
dated December 27, 1978, entered into between the petitioner and the private respondents, which
would have further enlightened the respondent NLRC on the "ITF PROBLEMS" insinuated by the private
respondents in their cable of March 23, 1979 to threaten and intimidate the petitioner into granting
the salary increases in question;

V. That respondent NLRC committed a grave abuse of discretion or acted without or in excess of its
jurisdiction or contrary to law when it ordered the petitioner Vir-jen to pay, among others, to the
private respondents their "wages corresponding to the unexpired portion of their contracts" the said
petitioner having already lost its trust and confidence on the private respondents; that the employer
cannot be legally compelled to continue with the employment of persons in whom it has already lost
its trust and confidence; that payment to the private respondents of their wages corresponding to the
unexpired portion of their contract would be tantamount to retaining their services after their
employer, petitioner herein, had already lost its faith and trust in them;

40
 VI. That the respondent NLRC committed a grave abuse of discretion or exceeded its jurisdiction in still
including and considering ROMEO ACOSTA as one of the appellants in the two (2) aforementioned NSB
cases and making him a beneficiary of its decision, dated July 8, 1981, modifying the NSB decision,
dated July 2, 1980, despite the fact that way back on October 23, 1980, Acosta had already filed in
said NSB cases a pleading, entitled "SATISFACTION OF JUDGMENT" in which he manifested that he was
not appealing the NSB decision anymore as the judgment in his favor was already fully satisfied by the
petitioner Vir-jen;

VII. That the respondent NLRC had no more jurisdiction to entertain private respondents' appeal
because the NSB decision became final and executory for failure of said respondents to serve on he
petitioner a copy of their "APPEAL AND MEMORANDUM OF APPEAL" within the ten (10) day
reglementary period for appeal and even after the expiration of said period;

VIII. That the respondent NLRC had no jurisdiction to entertain the appeal by the private respondents
based on the supposedly verified "APPEAL AND MEMORANDUM OF APPEAL" because the supposed
signature of the person purportedly verifying the same is forged; and that the new counsel appearing
for the private respondents on appeal was not even authorized by some of the private respondents to
appear for them;

IX. That the respondent NLRC committed a grave abuse of discretion or acted without or in excess of
jurisdiction or contrary to law when it misconstrued, misinterpreted and misapplied to the instant case
the ruling of this Honorable Supreme Court in Wallem Philippines Shipping, Inc. vs. The Hon. Minister
of Labor, et al., G.R No. 50734, prom. February 20, 1981, despite distinct and fundamental differences
in facts between the Wallem Case and the instant case;

X. That the respondent NLRC committed a grave abuse of discretion or acted without or in excess of its
jurisdiction or acted contrary to law when it failed and refused to consider and pass upon the
substantial issues of jurisdiction, law and facts and matters of public interests raised by the petitioner
in its URGENT MOTION/APPELLEE'S MEMORANDUM ON APPEAL, dated April 24, 1981, and in its MOTION
FOR RECONSIDERATION AND/OR NEW TRIAL, dated July 20, 1981, filed in the two (2) cases;

XI. That the respondent NLRC committed a grave abuse of discretion or acted without or in excess of
jurisdiction or contrary to law when it failed and refused to reconsider and set aside its decision
subject-matter of this petition for certiorari, considering Chat if allowed to stand, the said decision will
open the floodgates for Filipino seamen to disregard NSB-approved contracts of employment with
impunity, leading to the destruction of the Philippine manning industry, which is a substantial source of
revenue for the Philippine government, as well as the image of the Filipino seamen who will
undoubtedly become known far and wide as one prone to violate the solemnity of employment
contracts, compounded with the use of threats, intimidation and blackmail, thereby necessitating a
policy decision by this Honorable Supreme Court on the matter for the survival of the manning
industry. (Pp. 5-9, Record.)

We shall deal first with the jurisdictional issue (No. VII above) to the effect that the appeal of private respondents from
the decision of the National Seamen's Board against them was filed out of time, considering that copy of said decision
was received by them on July 9, 1980 and they filed their memorandum of appeal only on July 23, 1980 or fourteen (14)
days later, whereas under article 223 of the Labor Code which governs appeals from the National Seamen's Board to the
National Labor Relations Commission per Article 20(b) of the Code provides that such appeals must be made within ten
(10) days.

In this connection, it is contended in the comment of private respondents that petitioner has overlooked that under
Section 7, Rule XIII,, Book V of the Implementing Rules of the Labor Code, the ten-day period specified in Article 223
refers to working days and that this Court has already upheld such construction and manner of computation in Fabula
vs. NLRC, G.R. No. 54247, December 19, 1980. Now, computing the number of working days from July 9 to July 23, 1980
We find that there were exactly ten (10) days, hence, if We adhere to Fabula, the appeal in question must be held to
have been made on time.

But petitioner herein maintains that the Minister of Labor may not, under the guise of issuing implementing rules of a
law as authorized by the law itself, go beyond the clear and unmistakable language of the law and expand it at his
discretion. In other words, since Article 223 of the Labor Code literally provides thus:

Appeal. — Decisions, awards, or orders of the Labor Arbiters or compulsory arbitrators are final and
executory unless appealed to the Commission by any or both of the parties within ten (10) days from
receipt of such awards, orders, or decisions. Such appeal may be entertained only on any of the
following grounds:

(a) If there is a prima facie evidence of abuse of discretion on the part of the labor Arbiter or
compulsory arbitrator;

(b) If the decision, order, or award was secured through fraud or coercion, including graft and
corruption;

(c) If made purely on questions of law; and

41
 (d) If serious errors in the findings of facts are raised which would cause grave or irreparable damage
or injury to the appellant.

To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose
reasonable penalty, including fines or censures, upon the erring parties.

the implementing rules may not provide that the said period should be computed on the basis of working days. This,
indeed, is a legal issue not brought up nor passed upon squarely in Fabula, and petitioner prays that this Court rule on
the point once and for all.

After mature and careful deliberation, We have arrived at the conclusion that the shortened period of ten (10) days fixed
by Article 223 contemplates calendar days and not working days. We are persuaded to this conclusion, if only because
We believe that it is precisely in the interest of labor that the law has commanded that labor cases be promptly, if not
peremptorily, dispose of. Long periods for any acts to be done by the contending parties can be taken advantage of
more by management than by labor. Most labor claims are decided in their favor and management is generally the
appellant. Delay, in most instances, gives the employers more opportunity not only to prepare even ingenious defenses,
what with well-paid talented lawyers they can afford, but even to wear out the efforts and meager resources of the
workers, to the point that not infrequently the latter either give up or compromise for less than what is due them.

All the foregoing notwithstanding, and bearing in mind the peculiar circumstances of this case, particularly, the fact that
private respondents must have been misled by the implementing rules aforementioned. We have opted to just the same
pass on the merits of the substantial issues herein, even as We admonish all concerned to henceforth act in accordance
with our foregoing view. Verily, the Minister of Labor has no legal power to amend or alter in any material sense
whatever the law itself unequivocally specifies or fixes.

We need not ponder long on the contention of petitioner regarding the alleged forgery of the signature of respondent
Rogelio Bisula and the alleged lack of authority of the new counsel of respondents, Atty. B. C. Gonzales, to appear for
them. Resolution of these minor points, considering their highly controversial nature, so much so that they could
rationally to our mind, be decided either way, may be dispensed with in order that We may go to the more
transcendentally important main issues before Us.

As far as issue No. VI above regarding the inclusion of Romeo Acosta among the beneficiaries of the decision herein in
question, there can be no reason why petitioner should not be sustained. It is undenied that Acosta has filed a formal
satisfaction of judgment. Indeed, it is quite relevant to mention at this point that originally, there were twenty-eight (28)
claimants against petitioner, This number was first reduced to fifteen (15) then to ten (10) and finally to nine (9) now, by
withdrawal of the claimants themselves. These series of withdrawals lend no little degree to added enlightenment of the
discussion hereunder of the adverse positions of the remaining claimants, on the one hand, and the petitioner, on the
other.

To begin with, let it be borne in mind that seamen's contracts of the nature We have before Us now are not ordinary
ones. There are specie, laws and rules governing them precisely due to the peculiar circumstances that surround them.
Relatedly, We quote from the Manifestation and Comment of the Solicitor General:

The employment contract in question is unlike any ordinary contract of employment, for the reason
that a manning contract involves the interests not only of the signatories thereto, such as the local
Filipino recruiting agent (herein petitioner), the foreign owner of the vessel, and the Filipino crew
members (private respondents), but also those of other Filipino seamen in general as well as the
country itself. Accordingly, Article 12 of the Labor Code provides that it is the policy of the State not
only "to insure and regulate the movement of workers in conformity with the national interest" but also
"to insure careful selection of Filipino workers for overseas employment in order to protect the good
name of the Philippines abroad". The National Seamen Board (NSB), which is the agency created to
implement said state policies, is thus empowered pursuant to Article 20 of the Labor Code "to secure
the best possible terms and conditions of employment for seamen, and to insure compliance thereof"
not only on the part of the owners of the vessel but also on the part of the crew members themselves.

Conformably to the power vested in the NSB, the law requires that all manning contracts shall be
approved by said agency. It likewise provides that "it shall be unlawful to substitute or alter any
previously approved and certified employment contract without the approval of NSB" (Section 35,
Rules and Regulations in the recruitment and placement of Filipino seamen aboard foreign going ships)
and authorizes the employer or owner of the vessel to terminate such contract for just causes (Section
32, Ibid). Among such just causes for termination are "bad conduct and unwanted presence prejudicial
to the safety of the ship" (Guidebook for shipping employers, page 8) and material breach of said
contract.

The stringent rules governing Filipino seamen aboard foreign, going ships are dictated by national
interest. There are about 120,000 registered seamen with the NSB. Only about 50,000 of them are
employed and 70,000 or so are still hoping to be employed. Those Filipino seamen already employed
on board foreign-going ships should accordingly conduct themselves with utmost propriety and abide
strictly with the terms and conditions of their employment contract, and the NSB should see to that, in
order that owners of foreignowned vessels will not only be encouraged to renew their employment
contract but will moreover be induced to hire other Filipino seamen as against other competing foreign
sailors. (Pp. 15-17, Manifestation & Comment of the Solicitor General)

42
Pertinently, the Labor Code of the Philippines provides for the creation of a National Seamen Board (NSB) thus:

ART. 20. National Seamen Board.—(a) A National Seamen Board is hereby created which shall
developed and maintain a comprehensive program for Filipino seamen employed overseas. It shall
have the power and duty:

(1) To provide free placement services for seamen;

(2) To regulate and supervise the activities of agents or representatives of shipping

companies in the hiring of seamen for overseas employment; and secure the best
possible terms of employment for contract seamen workers and secure compliance
therewith; and

(3) To maintain a complete registry of all Filipino seamen.

(b) The Board shall have original and exclusive jurisdiction over all matters or cases including money
claims, involving employer-employee relations, arising out of or by virtue of any law or contracts
involving Filipino seamen for overseas employment. The decision of the Board shall be appealable to
the National Labor Relations Commission upon the same grounds provided in Article 223 hereof. The
decisions of the National Labor Relations Commission shall be final and inappealable.

The finality and unappealability of the decisions of the National Labor Relations Commission conferred by the above
provisions in cases of the nature now before Us necessarily limits Our power in the premises to the exercise of Our
plenary certiorari jurisdiction. And under the scheme of said Article 20, in relation to Article 223 of the same Code, the
reviewing authority of the Commission is limited only to the following instances:

Appeal.—Decisions, awards, or orders of the Labor Arbiters or compulsory arbitrators are final and
executory unless appealed to the Commission by any or both of the parties within ten (10) days from
receipt of such awards, orders, or decisions. Such appeal may be entertained only on any of the
following grounds:

(a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter or compulsory
arbitrator;

(b) If the decision, order or award was secured through fraud or coercion, including graft and
corruption;

(c) If made purely on questions of law;and

(d) If serious errors in the findings of facts are raised which would cause grave or irreparable damage
or injury to the appellant.

To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose
reasonable penalty, including fines or censures, upon the erring parties.

In all cases, the appellant shall furnish a copy of the memorandum of appeals to the other party who
shall file an answer not later than ten (10) days from receipt thereof.

xxx xxx xxx

In the light of the foregoing perspective of law and policy, all the other issues raised by petitioner may be disposed of
together. Anyway they revolve basically around the following questions:

1. In the event of conflict in the conclusions of the National Seamen Board, on the one hand, and the National Labor
Relations Commission on the other, on a matter that is fundamentally an issue of fact, which one should prevail?

2. Under the facts of this case, was it legally proper for the Commission to disregard the permission granted by the NSB
to the petitioner to disembark and discontinue the employment of herein respondents?

3. As a matter of fact, did respondent breach their contract with petitioner, so as to entitle the latter to take the punitive
action herein complained of?

4. Was the conformity of petitioner to pay respondents additional compensation of 25% secured by said respondents
thru threats of grave injury to petitioner who, therefore, acceded to such increase involuntarily?

We feel that the resolution of the instant controversy hinges on whether or not it was violative of law and policy in the
light of the peculiar nature of the contracts in question as already explained at the outset of this opinion, for the
respondents to make the demand for an increase of 50% of their respective wages stipulated in their NSB approved

43
contracts while they were already in the midst of the voyage to Kwinana, Australia (an ITF controlled post), pointedly
mentioning in their cablegram that such "demand (was) the best and only solution to solve ITF problem"?

On these questions, the NSB found and held:

1. Whether or not the Seamen breached their respective employment contracts;

2. Whether or not the Seamen were illegally dismissed by the Company;

3. Whether or not the monetary claims of the seamen are valid and meritorious;

4. Whether or not the monetary claims of the Company are valid and meritorious;

5. Whether or not disciplinary action should be taken against the Seamen.

With respect to the first issue, the Board believes that the answer should be in the affirmative. This is
so for the Seamen demanded and in fact received from the Company wages over and above their
contracted rates, which in effect is an alteration or modification of a valid and subsisting contract; and
the same not having been done thru mutual consent and without the prior approval of the Board the
alteration or modification is contrary to the provisions of the New Labor Code, as amended, more
particularly Art. 34 (i) thereof which states that:

Art. 34. Prohibited practices.—It shall be unlawful for any individual, entity, licensee or holder of
authority:

xxx xxx xxx

(i) To substitute or alter employment contracts approved and verified by the Department of Labor from
the time of actual signing thereof by the parties up to and including the period of expiration of the
same without the approval of the Department of Labor;

xxx xxx xxx

The revision of the contract was not done thru mutual consent for the Company did not voluntarily
agree to an increase of wage, but was only constrained to make a counter-proposal of 25% increase to
prevent the vessel from being interdicted and/or detained by the ITF because at the time the demand
for salary increase was made the vessel was enroute to Kwinana, Australia (via Senipah, Indonesia), a
port where the ITF is strong and militant. However, a perusal of the Cables (Exhs. "D" & "F", "3" & "5")
coming from the Seamen addressed to the Company would show the threatening manner by which the
desire for a salary increase was manifested, contrary to their claim that it was merely a request.
Aforesaid cables are hereby quoted for ready reference:

RYCV-11-12-13-14 RECEIVED URINFO ENTIRE JANNU OFFICERS AND CREW NOT AGREEABLE WITH
YOUR SUGGESTIONS THEY ARE NOT CONTENTED WITH PRESENT SALARY BASED IN VOLUME OF
WORKS TYPE OF SHIP WITH HAZARDOUS CARGO AND REGISTERED IN A WORLD WIDE TRADE STOP
REGARDING URCABV-14 OFFICERS AND CREW NOT INTERESTED IN ITF MEMBERSHIP IF NOT ACTUALLY
PAID WITH ITF RATE STOP WHAT WE DEMAND IS ONLY 50 PERCENT INCREASE BASED ON PRESENT
BASIC SALARY STOP THIS DEMAND THE BEST AND ONLY SOLUTION TO SOLVE ITF PROBLEM DUE YOUR
PRESENT RATE ESPECIALLY IN TANKERS VERY FAR IN COMPARISON WITH OTHER SHIPPING AGENCIES
IN MANILA STOP LET US SHARE EQUALLY THE FRUITS OF LONELINESS SACRIFICES AND HARDSHIP WE
ARE ENCOUNTERING ON BOARD WE REMAIN ...

REURVIR-JEN-15 OFFICERS AND CREW HESITATING TO GIVE UP DEMAND OF 50

PERCENT INCREASE BUT FOR GOOD AND HARMONIOUS RELATIONSHIP ONBOARD
AND RECONSIDERING YOUR SUPPOSE TO BE LOSSES IN CASE WE CONDITIONALLY
COOPERATE WITH YOUR PROPOSE INCREASE OF 25 PERCENT BASED ON INDIVIDUAL
MONTHLY BASIC PAY WITH FOLLOWING TERMS AND CONDITIONS AA EFFECTIVITY OF
25 PERCENT INCREASE MUST BE MARCH/79 PLUS SPECIAL COMPENSATION
MENTIONED URCAB VIRJEN-14 BB NEW COMPANY CIRCULAR ON UPGRADED NEW
SALARY SCALE DULY SIGNED AND APPROVED BE FORWARDED KWINANA AUSTRALIA
OR HANDCARRIED BY YOUR REPRESENTATIVE TO DISCUSS MATTERS OFFICIALLY CC
25 PERCENT INCREASE MUST BE COLLECTABLE ONBOARD EFFECTIVE ABOVE DATE
UNTIL DISEMBARKATION STOP ALLOTMENT TO ALLOTTEES REMAIN AS IS DD
REASONABLE REPALLOWS FOR ALL OFFICERS BE GIVEN EFFECTIVE MARCH/79 EE
BONUS FOR 6 MONTHS SERVICE RENDERED BE COLLECTIBLE ONBOARD FF
OFFICERS/CREW 30 PERCENT' OT SHOULD BE BASED NEW UPGRADED SALARY
SCALE GG MASTER/CHENGR/CHMATE SPECIAL COMPENSATION GIVE BY YOUR
COMPANY PRIOR DEPARTURE MANILA BE REMAIN AS IS STOP THE ABOVE TERMS
AND CONDITIONS SHOULD BE PROPERLY ENFORCE AND DOCUMENTED ALSO COPIES
AND FORWARDED ONBOARD ON ARRIVAL KWINANA AUSTRALIA CONFIRM ...

44
 While the Board recognizes the rights of the Seamen to seek higher wages provided the increase is
arrived at thru mutual consent, it could not however, sanction the same if the consent of the employer
is secured thru threats, intimidation or force. In the case at bar, the Company was compelled to
accede to the demand of the Seamen for a salary increase to forestall the possibility of the vessel
being interdicted by the ITF at Kwinana, Australia, for in the event the vessel would be detained and/or
interdicted the Company would suffer more losses than paying the Seamen 25% increase of their

With respect to the second issue, the Board believes that the termination of the services of the
Seamen was legal and in accordance with the provisions of their respective employment contracts.
Considering the findings of the Board that the Seamen breached their contracts, their subsequent
repatriation was justified. While it may be true that the Seamen were hired for a definite period their
services could be terminated prior to the completion of the fun term thereof for a just and valid cause.

It may be stated in passing that Vir-jen Shipping & Marine Services, Inc., despite the fact that it was
compelled to accede to a 25% salary increase for the Seamen, tried to convince its principal Kyoei
Tanker, Ltd. to an adjustment in their agency fee to answer for the 25% increase, but the latter not
only denied the request but likewise terminated their Manning, Agreement. The Seamen's breach of
their employment contracts and the subsequent termination of the Manning Agreement of Vir-jen
Shipping & Marine Services, Inc. with the Kyoei Tanker, Ltd., justified the termination of the Seamen's
services.

With respect to the third issue the following are the findings of the Board:

As regards the claim of the Seamen for the payment of their salaries for the unexpired portion of their
employment contracts the same should be denied. This is so because of the findings of the Board that
their dismissal was legal and for a just cause. Awards of this nature is proper only in cases where a
seafarer is illegally dismissed. (Pp. 148-151, Record)

Disagreeing with the foregoing findings of the NSB, the NLRC held:

The more important issue to be resolved in this case, however, is the question of whether the Seamen
violated their employment contracts when they demanded or proposed and in fact accepted wages
over and above their contracted rates. Stated otherwise, could the Seamen rightfully demand or
propose the revision of their employment contracts? While they concede that they are bound by their
contracts, the Seamen claim that their cable asking for the revision of their contract rates was a valid
exercise of their right to grievance.

The right to grievance is recognized in this jurisdiction even if there is a valid and subsisting contract,
especially where there are supervening facts or events of which a party to the contract was not
apprised at the time of its conclusion. As pointed out by the Supreme Court in the Wallem case, supra,
it "is a basic right of all working men to seek greater benefits not only for themselves but for their
families as well ..." and the "Constitution itself guarantees the promotion of social welfare and
protection to labor." In this care, records show that it was impressed on the Seamen that their vessel
would be trading only in Caribbean ports. This was admitted by the Company in its cable to the
Seamen on 10 January 1979. After the conclusion of their contracts, however, and after they had
boarded the vessel, the principals of the Company directed the vessel to can at different ports or to
engage in "worldwide trade" which is admittedly more difficult and hazardous than trading in only one
maritime area. This is a substantial change in the original understanding of the parties. Thus, in their
cable asking for a wage increase, the Seamen expressed their dissatisfaction by informing the
Company that they were "not contented with (their) present salary based on volume of work, type of
ship with hazardous cargo and registered in world wide trade."(emphasis supplied.) With such change
in the original agreement of the parties, we find that the Seamen were well within their rights in
demanding for the revision of their contract rates.

We also note that the Company was not exactly in good faith in contracting the service of the Seamen.
During his briefing in Manila, the Company instructed the master of the vessel, complainant Bisula, to
prepare two (2) sets of payrolls, one set reflecting the actual salary rates of the Seamen and the other
showing higher rates based on Panamanian Shipping articles which approximate those prescribed by
ITF for its member seafarers. In compliance with this instruction, Bisula prepared the latter payrolls.
These payrolls were intended for the consumption of ITF if and when the vessel called on ports where
ITF rates were operational, the evident purpose being to show ITF that the Company was paying the
same rates prescribed by said labor federation and thereby prevent the interdiction of the vessel. And
when the vessel was en route to Australia, an ITF-controlled port, the Company arranged for the
Seamen's membership with ITF and actually paid their membership fees without their knowledge and
consent, thereby exposing them to the danger of being disciplined by the NSB Secretariat for having
affiliated with ITF. All these have to be mentioned here to better understand the feelings of the
Seamen when they asked for the revision of their wage rates. 2 (Pp. 83-85, Record)

Comparing these two decisions, We do not hesitate to hold that the NLRC overstepped the boundaries of its reviewing
authority and was overlenient. Whether or not respondents had breached their contract wit petitioner is a factual issue,
the peculiar nuances of which were better known to the NSB, the fact-finding authority. Indeed, even if it was nothing
more than the interpretation of the cablegram sent by respondents to petitioner on March 23, 1979 that were the only
question to be resolved, that is, whether or not it carried with it or connoted a threat which naturally panicked petitioner,
which, to be sure, could be a question of law, still, as We see it, the conclusion of the NLRC cannot be justified.

45
The NLRC ruled that in the exercise of their right to present any grievances they had and in their desire to alleviate their
condition, it was but well and proper for respondents to make a proposal for increase of their wages, which petitioner
could accept or reject. We do not see it that way.

Definitely, the reference in the cablegram to the conformity of petitioner to respondents' demand was "the best and only
solution to ITF problem" had an undertone which naturally placed petitioner hardly in a position to answer them with a
flat denial. It would be the acme of naivete for Us to go along with the contention that the cablegram of March 23, 1979
was a mere proposal and had no trace nor tint of threat at all. Indeed, it is alleged in the petition and there is no denial
thereof that on April 23, 1979, Chief Mate Jacobo Catabay of the M/T Jannu, who was among the claimants at first,
revealed that:

On April 23, 1979, Chief Mate Jacobo H. Catabay of the M/T Jannu, in a signed statement-report to the
petitioner, marked and admitted in evidence as Exh. "10-A" during the trial stated, as follows:

On our departure at Keelung, we did not have destination until three (3) days later
that Harman cabled us to proceed to Senipah, Indonesia to load fun cargo to be
discharged at Kwinana , Australia. Captain told everyone that if only we stayed so
long with the ship, he will report to ITF personally in order to get back wages. In view
that we only worked for three months so the back wages is so small and does not
worth. From that time on, Chief Engr. and Captain have a nightly closed door
conference they arrived at the conclusion to ask for 50% salary increase and they
have modified a certain platforms. They certainly believe that Vir-jen have no choice
because the vessel is going to ITF port so they called a general meeting conducted
at the bridge during my duty hours in the afternoon. All engine and deck personnel
were present in that meeting. (Pp. 19-20, Record.)

Well taken, indeed, is the Solicitor General's observation that:

Private respondents'conduct is uncalled for. While employees may be free to request their employers
to increase their wages, they should not use threat of such a nature and in such a situation as to put
the employer at their complete mercy and with no choice but to accede to their demands or to face
bankruptcy. This is what private respondents did, which is an act of bad conduct prejudicial to the
vessel, and a material breach of the existing manning contract. It has adverse consequences that led
not only to the termination of the existing manning contract but to the rejection by Kyoei Tanker Co.
Ltd. of petitioner's offer to supply crew members to three other vessels, thereby depriving unemployed
Filipino seamen of the opportunity to work on said vessels. Thus, in a letter dated May 17, 1979, Kyoei
Tanker Co. Ltd. wrote petitioner as follows:

This is with reference to your letter of Feb. 23, 1979, submitting your manning offers on our three (3)
managed vessels for delivery as follows:

1. M/V "Maya" — crew,delivery end May, 1979,

2. M/T "Cedar" — 28 crew, delivery end June, 1979,

3. M/T "Global Oath" — 30 crew, delivery end, June 1979.

In this connection, we wish to advise you that, as a result of our unpleasant experience with your crew
on the M/T "Jannu", owners have decided to give the manning contracts on the above three vessels to
other foreign crew instead of your company.

We deeply regret that although your crew performance on our other four (4) vessels have been
satisfactory, we were unable to persuade owners to consider your Philippine crew because of the bad
attitude and actuation of your crew manned on board M/T "Jannu".

As we have already advised you, owners have spent more than US$30,000.00 to replace the crew of
M/T "Jannu" in Japan last April 19, 1979 which would have been saved if your crew did not violate their
employment contracts.(Annex "K"of Petition),

In the light of all the foregoing and the law and policy on the matter, it is submitted that there was
valid justification on the part of petitioner and/or its principal to terminate the manning contract. (Pp.
12-14, Manifestation and Comment of the Solicitor General.)

At first glance it might seem that the judgment of the NLRC should have more weight than that of NSB. Having in view,
however, the set up and relationship of these two entities framed by the Labor Code, the NSB is not only charged
directly with the administration of shipping companies in the hiring of seamen for overseas employment by seeing to it
that our seamen "secure the best possible terms of employment for contract seamen workers and secure compliance
therewith." Its composition as of the time this controversy arose is worth noting—for it is made up of the Minister of
Labor as Chairman, the Deputy Minister as Vice Chairman, and a representative each of the Ministries of Foreign Affairs,
National Defense, Education and Culture, the Central Bank, the Bureau of Employment Service, a worker's organization
and an employee's organization and the Executive Director of the Overseas Employment Development Board. (Article
23, Labor Code) It is such a board that has to approve all contracts of Filipino seamen (Article 18, Labor Code). And after
46
such approval, the contract becomes unalterable, it being "unlawful" under Article 34 of the Code "for any individual,
entity, licensee or holder of authority: (i) to substitute or alter employment contracts approved and verified by
Department of Labor from the time of actual signing thereof by the parties up to and including the period of expiration of
the same without the approval of the Department of Labor." In other words, it is not only that contracts may not be
altered or modified or amended without mutual consent of the parties thereto; it is further necessary to have the change
approved by the Department, otherwise, the guilty parties would be penalized.

The power of the NLRC in relation to the works and actuations of the NSB is only appellate, according to Article 20 (b),
read in relation to Article 223, principally, over questions of law, since as to factual matters, it may exercise such
appellate jurisdiction only "if errors in the findings of fact are raised which would cause grave or irreparable damage or
injury to the appellant." (par. d)

The NLRC has noted in its decision that respondents were originally made to believe that their ship would go only to the
Caribbean ports and yet after completing trips to Inchon, Korea and Kuwait and Keelung, Taiwan, it was suddenly
directed to call at Kwinana, Australia, an ITF controlled port. The record shows that this imputation is more apparent
than real, for respondents knew from the very moment they were hired that world-wide voyages or destinations were
contemplated in their agreement. So much so that corresponding steps had to be taken to avoid interference of or
trouble about the ITF upon the ship's arrival at ITF controlled ports. As already stated earlier, the ITF requires the
seamen working on any vessel calling at ports controlled by them to be paid the rates fixed by the ITF which are much
higher than those provided in the contract's signed here, to the extent of causing tremendous loss if not bankruptcy of
the employer.

And so, as revealed to the NLRC later, in anticipation precisely of such peril to the employer and ultimate unemployment
of the seamen, in the instant case, the usual procedure undeniably known to respondents of having two payroll's, one
containing the actually agreed rates and the other ITF rates, the latter to be shown to the ITF in order that the ship may
not be detained or interdicted in Kwinana, was followed. But according to the NLRC, this practice constitutes deception
and bad faith, and worse, it is an effect within the prohibition against alteration of contracts approved by the NSB,
considering there is nothing to show that NSB was made aware of the so-called addendum or side agreement to the
effect that should the ship manned by respondents be made to call an any ITF controlled port, the contract with ITF rates
would be shown and, if for any reason, the respondents are required to be actually paid higher rates and they are so
paid, the excess over the rates agreed in the NSB contract shall be returned to petitioner later.

It is of insubstantial moment that the side agreement or addendum was not made known to or presented as evidence
before the NSB. We are persuaded that more or less the NSB knows that the general practice is to have such side
contracts. More importantly, the said side contracts are not meant at all to alter or modify the contracts approved by the
NSB. Rather, they are precisely purported to enforce them to the letter, making it clearer that even if the ships have to
call at ITF controlled ports, the same shall remain to be the real and binding agreement between the parties, in
intentional disregard of whatever the ITF may exact.

We hold that there was no bad faith in having said side contracts, the intent thereof being to put into effect the NSB
directed arrangements that would protect the ship manning industry from unjust and ruinning effects of ITF intervention.
Indeed, examining the said side agreements, it is not correct to say that the respondents were caught unaware, or by
surprise when they were advised that the ship would proceed to Kwinana, Australia, even assuming they had been
somehow informed that they would sail to the Caribbean. Said side agreements textually provide:

KNOW ALL MEN BY THESE PRESENTS:

This Addendum Agreement entered into by and between KYOEI TANKER CO., LTD., Principals, of the
vessel M.T. "JANNU", represented herein by VIR-JEN SHIPPING & MARINE SERVICES, INC., Manila,
Philippines, as Manning Agents (hereinafter referred to as the Company),

— and —

The herein-mentioned officers and crew, and engaged by the Company as crewmembers of the vessel
M/T "JANNU" with their positions, seaman certificate numbers and signatures (hereinafter referred to
as the Crewmember), hereunder shown:

W I T N E S S E T H that:

1. WHEREAS, the Crewmember is hired and recruited as a member of the crew on board the vessel M/T
"JANNU" with the corresponding Contracts of Employment submitted to, verified and duly approved by
the National Seamen Board; that the employment contract referred to, has clearly defined the rate of
salary, wages, and/or employment benefits for a period of one (1) year (or twelve (12) months), and
any extension thereof.

2. WHEREAS, the parties hereby further agree and covenant that should the above-mentioned vessel
enter, dock or drop anchor in ports of other countries, the Crewmember shall not demand, ask or
receive, and the Company shall have no obligation to pay the Crewmember, salaries,, wages and/or
benefits over and above those provided for in the employment contract submitted to, verified and
approved by the National Seamen Board, which shall remain in full force and effect between the
parties. The Company as well as the Owners,, Charterers, Agents shall neither be held accountable nor
liable for any amount other than what is agreed upon and stipulated in the aforesaid NSB-approved
Contracts of Employment.
47
 3. WHEREAS, the parties likewise agree that should the vessel enter, dock or drop anchor in any
foreign port, and in the event that the Company (and/or its Owners, Charterers, Agents), are forced,
pressured, coerced or compelled, in any way and for whatever cause or reason, to pay the
Crewmember either directly or thru their respective allottees or other persons, salaries and benefits
higher than those rates imposed in the NSB-approved contract, the Crewmember hereby agrees and
binds himself to receive the said payment in behalf of, and in trust for, the Company (and/or its
Owners, Charterers, Agents), and to return the said amount in full to the Company or to its agent/s in
Manila, Philippines immediately upon his and/or his allottees receipt thereof; the Crewmember hereby
waives formal written demand by the Company or its agent/s for the return thereof. The Crewmember
hereby fully understands that failure or refusal by him to return to the Company the said amount, will
render him criminally liable for Estafa, as provided for in the Revised Penal Code of the Philippines, and
in such case, the parties hereby agree that any criminal and/or civil action in connection therewith
shall be within the exclusive jurisdiction of Philippine Courts.

4. WHEREAS, if, in order to avoid delays to the vessels, the Company is forced, pressured, coerced or
compelled to sign a Collective Bargaining Agreement or any other Agreement with any foreign union,
particularly ITF or ITF affiliated unions, and to sign new crews' contract of employment stipulating
higher wages, salaries or benefits than the NSB-approved contract, the said agreements and contracts
shall be void from the beginning and the Crewmember shall be deemed to have automatically waived
the increased salaries and benefits stipulated in the said agreements and employment contracts unto
and in favor of the Company, and shall remain unalterably bound by the rates, terms, and conditions
of the NSB-approved contract.

5. WHEREAS, the parties also agree that should the Company, as a precautionary or anticipatory
measure for the purpose of avoiding costly delays to the vessel prejudicial to its own interest, decide
to negotiate and/or enter into any agreement in advance with any foreign based union, particularly ITF
or ITF affiliated unions, in any foreign port where the vessel involved herein may enter, dock or drop
anchor, whatever increases in salaries or benefits to the Crewmember that the Company may be
compelled to give, over and above those stipulated in the NSB-approved employment contracts of the
Crewmember, shag, likewise, be deemed ineffective or void from the beginning as far as the
Crewmember is concerned, and any such increases in salaries or benefits which the Crewmember shall
receive pursuant thereto shall be held by the Crewmembers in trust for the Company with the
obligation to return the same immediately upon receipt thereof, at the Company's or its agent's office
at Manila, Philippines. It is fully understood that the rates of pay and all other terms and conditions
embodied in the NSB-approved employment contracts shall be of continuing validity and effectivity
between the parties, irrespective of the countries or ports where the said vessel shall enter, dock or
drop anchor, and irrespective of any agreement which the Company may enter or may have entered
into with any union, particularly ITF or ITF affiliated unions.

6. WHEREAS, it is likewise agreed that any undertaking made by the Company and/or the National
Seamen Board upon the request of the Company, imposed by any foreign union, particularly ITF or ITF
affiliated unions, which will negate or render in effective any provisions of this agreement, shall also be
considered null and void from the beginning.

7. WHEREAS, lastly, this Addendum Agreement is entered into for the mutual interest of both parties in
line with the Company's desire to continue the service of the Filipino crewmembers on board their
vessel and the Crewmembers'desire to keep their employment on board the subject vessel, thus
maintaining the good image of the Filipino seamen and contributing to the development of the
Philippine manning industry.

8. That both the Company and the Crewmember agree and bind themselves that this Agreement shall
be considered an addendum to, or as part of, the NSB-approved employment contract entered into by
the Company and the Crewmember.

IN WITNESS WHEREOF, we have hereunto affixed our signatures this December 28, 1978 at Manila,
Philippines.

THE COMPANY 
VIR-JEN SHIPPING & MARINE SERVICES, INC.

By:

(SGD.) CAPT. RUBEN R. BALTAZAR 

Operations Dept.

THE CREWMEMBERS

(Pp. 99-103, Annex D-1 of Petition)

The NLRC has cited Wallem Philippine Shipping Inc. vs. The Minister of Labor, G. R. No. 50734-37, February 20, 1981
(102 SCRA 835). No less than the Solicitor General maintains that said cited case is not controlling:

48
 A careful examination of Wallem Philippine Shipping Inc. vs. The Minister of Labor, G. R. No. 50734-37,
February, 20, 1981 shows that the same is dissimilar to the case at bar. In the Wallem case, there was
an express agreement between the employer and the ITF representative, under which said employer
bound itself to pay the crew members salary rates similar to those of ITF. When the crew members in
the Wallem case demanded that they be paid ITF rates, they were merely asking their employer to
comply with what had been agreed upon with the ITF representative, which conduct on their part
cannot be said to be a violation of contract but an effort to urge performance thereof. Such is not the
situation in the case at bar. In the case at bar, petitioner and private respondents had a side
agreement, whereby private respondents agreed to return to petitioner whatever amounts petitioner
would be required to pay under ITF rates. In other words, petitioner and private respondents agreed
that petitioner would not pay the ITF rate. When private respondents used ITF as threat to secure
increase in salary, they violated the manning contract. Moreover, in the case at bar, petitioner
terminated the manning contract only after the NSB authorized it to do so, after it found the grounds
therefor to be valid. On the other hand, the termination of the manning contract in the Wallem case
was without prior authorization from the NSB.

It will be noted that private respondents sent a cable to petitioner demanding an increase of 50% of
their basic salary as the only solution to the ITF problem at a time when the vessel M/T JANNU was
enroute to Australia, an ITF port. The fact that private respondents mentioned ITF in their cable clearly
shows that if petitioner would not accede to their demands, they would denounce petitioner to ITF.
Thus, Chief Mate Jacobo Catabay in his report dated April 23, 1979 (Exh. 10-A) stated:

On our departure at Keelung, we did not have destination until three days later that
Harman cabled us to proceed to Senipah, Indonesia to load fun cargo to be
discharged at Kwinana, Australia. Captain told everyone that if only we stayed so
long with the ship, he will report to ITF personally in order to get back wages. In view
that we only worked for three months so the back wages is so small and does not
worth. From that time on, Chief Engr. and Captain have a nightly closed door
conference until they arrived at the conclusion to ask for 50% salary increase and
they have modified a certain platforms. They certainly believe that Vir-jen have no
choice because the vessel is going to ITF port so they called a general meeting
conducted at the bridge during my duty hours in the afternoon. All engines and deck
personnel were present in that meeting. (Emphasis supplied)

Reporting the wage scheme to the ITF would mean that the vessel would be interdicted and detained
in Australia unless petitioner pay the ITF rates, which represent more than 100% of what is stipulated
in the manning contract. Petitioner was thus forced to grant private respondents an increase of 25% in
their basic salary. That such grant of a 25% increase was not voluntary is shown by the fact that
petitioner immediately denounced the seamen's conduct to NSB and subsequently asked said agency
authority to terminate the manning contract. (Pp. 10-12, Manifestation & Comment of Solicitor
General)

Summarizing, We are convinced that since the NSB, considering its official role in matters like those now before Us, is
the fact-finding body, and there is no sufficient cogency in the NLRC's finding that there was no threat employed by
respondents on petitioner, and, it appearing further that the well prepared Manifestation and Comment of the Solicitor
General supports the decision of the NSB, which body, to Our mind, was in a better position than the NLRC to appraise
the relevant nuances of the actuations of both parties, We are of the considered view that the decision of the NLRC
under question constitutes grave abuse of discretion and should be set aside in favor of the NSB's decision.

In El Hogar Filipino Mutual Building and Loan Association vs. Building Employees Inc., 107 Phil. 473, citing San Miguel
Brewery vs. National Labor Union, 97 Phil. 378, We emphasized:

Much as we should expand beyond economic orthodoxy, we hold that an employer cannot be legally
compelled to continue with the employment of a person who admittedly was guilty of misfeasance or
malfeasance towards his employer, and whose continuance in the service of the latter is patently
inimical to his interest. The law in protecting the rights of the laborer, authorizes neither the
oppression nor self-destruction of the employer. (Page 3, Record) (Emphasis supplied)

It is timely to add here in closing that situations wherein employers are practically laid in ambush or placed in a position
not unlike those in a highjack whether in the air, land or midsea must be considered to be what they really are: acts of
coercion, threat and intimidation against which the victim has generally no recourse but to yield at the peril of
irreparable loss. And when such happenings affect the national economy, as pointed out by the Solicitor General, they
must be treated to be in the nature of economic sabotage. They should not be tolerated. This Court has to be careful not
to sanction them.

WHEREFORE, the petition herein is granted and the decision of the NLRC complained of hereby set aside; the decision of
the NSB should stand.

No costs.

Concepcion, Jr., Guerrero, Abad Santos, De Castro and Escolin, JJ., concur.

Aquino, J., concur in the result.

49
 

Footnotes

1 NSB Case No. 2250-79 is a complaint for illegal dismissal and non-payment of earned wages filed by
27 officers and crew/members of the vessel M/T "Jannu" against herein petitioner while NSB2252-79 is
a complaint for breach of contract and recovery of excess salaries, overtime pay filed by petitioner
against the complainants in the other case.

2 Please see clarification of the point that respondents were misled as to whether they were hired for
worldwide voyages or not in the latter part of this opinion.

k. CIR VS AICHI FORGING COMPANY (GR NO. 18423, OCTOBER 06, 2010)

G.R. No. 184823               October 6, 2010

COMMISSIONER OF INTERNAL REVENUE, Petitioner, 

vs.
AICHI FORGING COMPANY OF ASIA, INC., Respondent.

DECISION

DEL CASTILLO, J.:

A taxpayer is entitled to a refund either by authority of a statute expressly granting such right, privilege, or incentive in
his favor, or under the principle of solutio indebiti requiring the return of taxes erroneously or illegally collected. In both
cases, a taxpayer must prove not only his entitlement to a refund but also his compliance with the procedural due
process as non-observance of the prescriptive periods within which to file the administrative and the judicial claims
would result in the denial of his claim.

This Petition for Review on Certiorari under Rule 45 of the Rules of Court seeks to set aside the July 30, 2008
Decision1 and the October 6, 2008 Resolution2 of the Court of Tax Appeals (CTA) En Banc.

Factual Antecedents

Respondent Aichi Forging Company of Asia, Inc., a corporation duly organized and existing under the laws of the
Republic of the Philippines, is engaged in the manufacturing, producing, and processing of steel and its by-products. 3 It
is registered with the Bureau of Internal Revenue (BIR) as a Value-Added Tax (VAT) entity 4 and its products, "close
impression die steel forgings" and "tool and dies," are registered with the Board of Investments (BOI) as a pioneer
status.5

On September 30, 2004, respondent filed a claim for refund/credit of input VAT for the period July 1, 2002 to September
30, 2002 in the total amount of ₱3,891,123.82 with the petitioner Commissioner of Internal Revenue (CIR), through the
Department of Finance (DOF) One-Stop Shop Inter-Agency Tax Credit and Duty Drawback Center. 6

Proceedings before the Second Division of the CTA

On even date, respondent filed a Petition for Review 7 with the CTA for the refund/credit of the same input VAT. The case
was docketed as CTA Case No. 7065 and was raffled to the Second Division of the CTA.

In the Petition for Review, respondent alleged that for the period July 1, 2002 to September 30, 2002, it generated and
recorded zero-rated sales in the amount of ₱131,791,399.00,8 which was paid pursuant to Section 106(A) (2) (a) (1), (2)
and (3) of the National Internal Revenue Code of 1997 (NIRC); 9 that for the said period, it incurred and paid input VAT
amounting to ₱3,912,088.14 from purchases and importation attributable to its zero-rated sales; 10and that in its
application for refund/credit filed with the DOF One-Stop Shop Inter-Agency Tax Credit and Duty Drawback Center, it
only claimed the amount of ₱3,891,123.82.11

In response, petitioner filed his Answer12 raising the following special and affirmative defenses, to wit:

4. Petitioner’s alleged claim for refund is subject to administrative investigation by the Bureau;

5. Petitioner must prove that it paid VAT input taxes for the period in question;

6. Petitioner must prove that its sales are export sales contemplated under Sections 106(A) (2) (a), and 108(B)
(1) of the Tax Code of 1997;

50
 7. Petitioner must prove that the claim was filed within the two (2) year period prescribed in Section 229 of the
Tax Code;

8. In an action for refund, the burden of proof is on the taxpayer to establish its right to refund, and failure to
sustain the burden is fatal to the claim for refund; and

9. Claims for refund are construed strictly against the claimant for the same partake of the nature of exemption
from taxation.13

Trial ensued, after which, on January 4, 2008, the Second Division of the CTA rendered a Decision partially granting
respondent’s claim for refund/credit. Pertinent portions of the Decision read:

For a VAT registered entity whose sales are zero-rated, to validly claim a refund, Section 112 (A) of the NIRC of 1997, as
amended, provides:

SEC. 112. Refunds or Tax Credits of Input Tax. –

(A) Zero-rated or Effectively Zero-rated Sales. – Any VAT-registered person, whose sales are zero-rated or effectively
zero-rated may, within two (2) years after the close of the taxable quarter when the sales were made, apply for the
issuance of a tax credit certificate or refund of creditable input tax due or paid attributable to such sales, except
transitional input tax, to the extent that such input tax has not been applied against output tax: x x x

Pursuant to the above provision, petitioner must comply with the following requisites: (1) the taxpayer is engaged in
sales which are zero-rated or effectively zero-rated; (2) the taxpayer is VAT-registered; (3) the claim must be filed within
two years after the close of the taxable quarter when such sales were made; and (4) the creditable input tax due or paid
must be attributable to such sales, except the transitional input tax, to the extent that such input tax has not been
applied against the output tax.

The Court finds that the first three requirements have been complied [with] by petitioner.

With regard to the first requisite, the evidence presented by petitioner, such as the Sales Invoices (Exhibits "II" to "II-
262," "JJ" to "JJ-431," "KK" to "KK-394" and "LL") shows that it is engaged in sales which are zero-rated.

The second requisite has likewise been complied with. The Certificate of Registration with OCN 1RC0000148499 (Exhibit
"C") with the BIR proves that petitioner is a registered VAT taxpayer.

In compliance with the third requisite, petitioner filed its administrative claim for refund on September 30, 2004 (Exhibit
"N") and the present Petition for Review on September 30, 2004, both within the two (2) year prescriptive period from
the close of the taxable quarter when the sales were made, which is from September 30, 2002.

As regards, the fourth requirement, the Court finds that there are some documents and claims of petitioner that are
baseless and have not been satisfactorily substantiated.

xxxx

In sum, petitioner has sufficiently proved that it is entitled to a refund or issuance of a tax credit certificate representing
unutilized excess input VAT payments for the period July 1, 2002 to September 30, 2002, which are attributable to its
zero-rated sales for the same period, but in the reduced amount of ₱3,239,119.25, computed as follows:

Amount of Claimed Input VAT ₱ 3,891,123.82

Less:  
Exceptions as found by the ICPA 41,020.37

Net Creditable Input VAT ₱ 3,850,103.45

Less:  
Output VAT Due 610,984.20
Excess Creditable Input VAT ₱ 3,239,119.25

WHEREFORE, premises considered, the present Petition for Review is PARTIALLY GRANTED. Accordingly, respondent is
hereby ORDERED TO REFUND OR ISSUE A TAX CREDIT CERTIFICATE in favor of petitioner [in] the reduced amount of
THREE MILLION TWO HUNDRED THIRTY NINE THOUSAND ONE HUNDRED NINETEEN AND 25/100 PESOS (₱3,239,119.25),
representing the unutilized input VAT incurred for the months of July to September 2002.

SO ORDERED.14

51
Dissatisfied with the above-quoted Decision, petitioner filed a Motion for Partial Reconsideration, 15 insisting that the
administrative and the judicial claims were filed beyond the two-year period to claim a tax refund/credit provided for
under Sections 112(A) and 229 of the NIRC. He reasoned that since the year 2004 was a leap year, the filing of the claim
for tax refund/credit on September 30, 2004 was beyond the two-year period, which expired on September 29,
2004.16 He cited as basis Article 13 of the Civil Code, 17 which provides that when the law speaks of a year, it is equivalent
to 365 days. In addition, petitioner argued that the simultaneous filing of the administrative and the judicial claims
contravenes Sections 112 and 229 of the NIRC.18 According to the petitioner, a prior filing of an administrative claim is a
"condition precedent"19 before a judicial claim can be filed. He explained that the rationale of such requirement rests not
only on the doctrine of exhaustion of administrative remedies but also on the fact that the CTA is an appellate body
which exercises the power of judicial review over administrative actions of the BIR. 20

The Second Division of the CTA, however, denied petitioner’s Motion for Partial Reconsideration for lack of merit.
Petitioner thus elevated the matter to the CTA En Banc via a Petition for Review.21

Ruling of the CTA En Banc

On July 30, 2008, the CTA En Banc affirmed the Second Division’s Decision allowing the partial tax refund/credit in favor
of respondent. However, as to the reckoning point for counting the two-year period, the CTA En Banc ruled:

Petitioner argues that the administrative and judicial claims were filed beyond the period allowed by law and hence, the
honorable Court has no jurisdiction over the same. In addition, petitioner further contends that respondent's filing of the
administrative and judicial [claims] effectively eliminates the authority of the honorable Court to exercise jurisdiction
over the judicial claim.

We are not persuaded.

Section 114 of the 1997 NIRC, and We quote, to wit:

SEC. 114. Return and Payment of Value-added Tax. –

(A) In General. – Every person liable to pay the value-added tax imposed under this Title shall file a quarterly return of
the amount of his gross sales or receipts within twenty-five (25) days following the close of each taxable quarter
prescribed for each taxpayer: Provided, however, That VAT-registered persons shall pay the value-added tax on a
monthly basis.

[x x x x ]

Based on the above-stated provision, a taxpayer has twenty five (25) days from the close of each taxable quarter within
which to file a quarterly return of the amount of his gross sales or receipts. In the case at bar, the taxable quarter
involved was for the period of July 1, 2002 to September 30, 2002. Applying Section 114 of the 1997 NIRC, respondent
has until October 25, 2002 within which to file its quarterly return for its gross sales or receipts [with] which it complied
when it filed its VAT Quarterly Return on October 20, 2002.

In relation to this, the reckoning of the two-year period provided under Section 229 of the 1997 NIRC should start from
the payment of tax subject claim for refund. As stated above, respondent filed its VAT Return for the taxable third
quarter of 2002 on October 20, 2002. Thus, respondent's administrative and judicial claims for refund filed on
September 30, 2004 were filed on time because AICHI has until October 20, 2004 within which to file its claim for refund.

In addition, We do not agree with the petitioner's contention that the 1997 NIRC requires the previous filing of an
administrative claim for refund prior to the judicial claim. This should not be the case as the law does not prohibit the
simultaneous filing of the administrative and judicial claims for refund. What is controlling is that both claims for refund
must be filed within the two-year prescriptive period.

In sum, the Court En Banc finds no cogent justification to disturb the findings and conclusion spelled out in the assailed
January 4, 2008 Decision and March 13, 2008 Resolution of the CTA Second Division. What the instant petition seeks is
for the Court En Banc to view and appreciate the evidence in their own perspective of things, which unfortunately had
already been considered and passed upon.

WHEREFORE, the instant Petition for Review is hereby DENIED DUE COURSE and DISMISSED for lack of merit.
Accordingly, the January 4, 2008 Decision and March 13, 2008 Resolution of the CTA Second Division in CTA Case No.
7065 entitled, "AICHI Forging Company of Asia, Inc. petitioner vs. Commissioner of Internal Revenue, respondent" are
hereby AFFIRMED in toto.

SO ORDERED.22

Petitioner sought reconsideration but the CTA En Banc denied23 his Motion for Reconsideration.

Issue

52
Hence, the present recourse where petitioner interposes the issue of whether respondent’s judicial and administrative
claims for tax refund/credit were filed within the two-year prescriptive period provided in Sections 112(A) and 229 of

the NIRC.24

Petitioner’s Arguments

Petitioner maintains that respondent’s administrative and judicial claims for tax refund/credit were filed in violation of
Sections 112(A) and 229 of the NIRC.25 He posits that pursuant to Article 13 of the Civil Code,26 since the year 2004 was
a leap year, the filing of the claim for tax refund/credit on September 30, 2004 was beyond the two-year period, which
expired on September 29, 2004.27

Petitioner further argues that the CTA En Banc erred in applying Section 114(A) of the NIRC in determining the start of
the two-year period as the said provision pertains to the compliance requirements in the payment of VAT. 28 He asserts
that it is Section 112, paragraph (A), of the same Code that should apply because it specifically provides for the period
within which a claim for tax refund/ credit should be made. 29

Petitioner likewise puts in issue the fact that the administrative claim with the BIR and the judicial claim with the CTA
were filed on the same day.30 He opines that the simultaneous filing of the administrative and the judicial claims
contravenes Section 229 of the NIRC, which requires the prior filing of an administrative claim. 31 He insists that such
procedural requirement is based on the doctrine of exhaustion of administrative remedies and the fact that the CTA is an
appellate body exercising judicial review over administrative actions of the CIR. 32

Respondent’s Arguments

For its part, respondent claims that it is entitled to a refund/credit of its unutilized input VAT for the period July 1, 2002 to
September 30, 2002 as a matter of right because it has substantially complied with all the requirements provided by
law.33 Respondent likewise defends the CTA En Banc in applying Section 114(A) of the NIRC in computing the
prescriptive period for the claim for tax refund/credit. Respondent believes that Section 112(A) of the NIRC must be read
together with Section 114(A) of the same Code.34

As to the alleged simultaneous filing of its administrative and judicial claims, respondent contends that it first filed an
administrative claim with the One-Stop Shop Inter-Agency Tax Credit and Duty Drawback Center of the DOF before it
filed a judicial claim with the CTA.35 To prove this, respondent points out that its Claimant Information Sheet No.
4970236 and BIR Form No. 1914 for the third quarter of 2002, 37 which were filed with the DOF, were attached as Annexes
"M" and "N," respectively, to the Petition for Review filed with the CTA. 38 Respondent further contends that the non-
observance of the 120-day period given to the CIR to act on the claim for tax refund/credit in Section 112(D) is not fatal
because what is important is that both claims are filed within the two-year prescriptive period. 39 In support thereof,
respondent cites Commissioner of Internal Revenue v. Victorias Milling Co., Inc. 40 where it was ruled that "[i]f, however,
the [CIR] takes time in deciding the claim, and the period of two years is about to end, the suit or proceeding must be
started in the [CTA] before the end of the two-year period without awaiting the decision of the [CIR]." 41 Lastly,
respondent argues that even if the period had already lapsed, it may be suspended for reasons of equity considering
that it is not a jurisdictional requirement.42

Our Ruling

The petition has merit.

Unutilized input VAT must be claimed within two years after the close of the taxable quarter when the sales were made

In computing the two-year prescriptive period for claiming a refund/credit of unutilized input VAT, the Second Division of
the CTA applied Section 112(A) of the NIRC, which states:

SEC. 112. Refunds or Tax Credits of Input Tax. –

(A) Zero-rated or Effectively Zero-rated Sales – Any VAT-registered person, whose sales are zero-rated or effectively
zero-rated may, within two (2) years after the close of the taxable quarter when the sales were made, apply for the
issuance of a tax credit certificate or refund of creditable input tax due or paid attributable to such sales, except
transitional input tax, to the extent that such input tax has not been applied against output tax: Provided, however, That
in the case of zero-rated sales under Section 106(A)(2)(a)(1), (2) and (B) and Section 108 (B)(1) and (2), the acceptable
foreign currency exchange proceeds thereof had been duly accounted for in accordance with the rules and regulations of
the Bangko Sentral ng Pilipinas (BSP): Provided, further, That where the taxpayer is engaged in zero-rated or effectively
zero-rated sale and also in taxable or exempt sale of goods or properties or services, and the amount of creditable input
tax due or paid cannot be directly and entirely attributed to any one of the transactions, it shall be allocated
proportionately on the basis of the volume of sales. (Emphasis supplied.)

The CTA En Banc, on the other hand, took into consideration Sections 114 and 229 of the NIRC, which read:

SEC. 114. Return and Payment of Value-Added Tax. –

53
(A) In General. – Every person liable to pay the value-added tax imposed under this Title shall file a quarterly return of
the amount of his gross sales or receipts within twenty-five (25) days following the close of each taxable quarter
prescribed for each taxpayer: Provided, however, That VAT-registered persons shall pay the value-added tax on a
monthly basis.

Any person, whose registration has been cancelled in accordance with Section 236, shall file a return and pay the tax
due thereon within twenty-five (25) days from the date of cancellation of registration: Provided, That only one
consolidated return shall be filed by the taxpayer for his principal place of business or head office and all branches.

xxxx

SEC. 229. Recovery of tax erroneously or illegally collected. –

No suit or proceeding shall be maintained in any court for the recovery of any national internal revenue tax hereafter
alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected
without authority, or of any sum alleged to have been excessively or in any manner wrongfully collected, until a claim
for refund or credit has been duly filed with the Commissioner; but such suit or proceeding may be maintained, whether
or not such tax, penalty or sum has been paid under protest or duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of
the tax or penalty regardless of any supervening cause that may arise after payment: Provided, however, That the
Commissioner may, even without written claim therefor, refund or credit any tax, where on the face of the return upon
which payment was made, such payment appears clearly to have been erroneously paid. (Emphasis supplied.)

Hence, the CTA En Banc ruled that the reckoning of the two-year period for filing a claim for refund/credit of unutilized
input VAT should start from the date of payment of tax and not from the close of the taxable quarter when the sales
were made.43

The pivotal question of when to reckon the running of the two-year prescriptive period, however, has already been
resolved in Commissioner of Internal Revenue v. Mirant Pagbilao Corporation, 44 where we ruled that Section 112(A) of
the NIRC is the applicable provision in determining the start of the two-year period for claiming a refund/credit of
unutilized input VAT, and that Sections 204(C) and 229 of the NIRC are inapplicable as "both provisions apply only to
instances of erroneous payment or illegal collection of internal revenue taxes." 45 We explained that:

The above proviso [Section 112 (A) of the NIRC] clearly provides in no uncertain terms that unutilized input VAT
payments not otherwise used for any internal revenue tax due the taxpayer must be claimed within two
years reckoned from the close of the taxable quarter when the relevant sales were made pertaining to the
input VAT regardless of whether said tax was paid or not. As the CA aptly puts it, albeit it erroneously applied the
aforequoted Sec. 112 (A), "[P]rescriptive period commences from the close of the taxable quarter when the sales were
made and not from the time the input VAT was paid nor from the time the official receipt was issued." Thus, when a
zero-rated VAT taxpayer pays its input VAT a year after the pertinent transaction, said taxpayer only has a year to file a
claim for refund or tax credit of the unutilized creditable input VAT. The reckoning frame would always be the end of the
quarter when the pertinent sales or transaction was made, regardless when the input VAT was paid. Be that as it may,
and given that the last creditable input VAT due for the period covering the progress billing of September 6, 1996 is the
third quarter of 1996 ending on September 30, 1996, any claim for unutilized creditable input VAT refund or tax credit
for said quarter prescribed two years after September 30, 1996 or, to be precise, on September 30, 1998. Consequently,
MPC’s claim for refund or tax credit filed on December 10, 1999 had already prescribed.

Reckoning for prescriptive period under

Secs. 204(C) and 229 of the NIRC inapplicable

To be sure, MPC cannot avail itself of the provisions of either Sec. 204(C) or 229 of the NIRC which, for the purpose of
refund, prescribes a different starting point for the two-year prescriptive limit for the filing of a claim therefor. Secs.
204(C) and 229 respectively provide:

Sec. 204. Authority of the Commissioner to Compromise, Abate and Refund or Credit Taxes. – The Commissioner may –

xxxx

(c) Credit or refund taxes erroneously or illegally received or penalties imposed without authority, refund the value of
internal revenue stamps when they are returned in good condition by the purchaser, and, in his discretion, redeem or
change unused stamps that have been rendered unfit for use and refund their value upon proof of destruction. No credit
or refund of taxes or penalties shall be allowed unless the taxpayer files in writing with the Commissioner a claim for
credit or refund within two (2) years after the payment of the tax or penalty: Provided, however, That a return filed
showing an overpayment shall be considered as a written claim for credit or refund.

xxxx

Sec. 229. Recovery of Tax Erroneously or Illegally Collected. – No suit or proceeding shall be maintained in any court for
the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed or
collected, or of any penalty claimed to have been collected without authority, of any sum alleged to have been

54
excessively or in any manner wrongfully collected without authority, or of any sum alleged to have been excessively or
in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but such
suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of
the tax or penalty regardless of any supervening cause that may arise after payment: Provided, however, That the
Commissioner may, even without a written claim therefor, refund or credit any tax, where on the face of the return upon
which payment was made, such payment appears clearly to have been erroneously paid.

Notably, the above provisions also set a two-year prescriptive period, reckoned from date of payment of the tax or
penalty, for the filing of a claim of refund or tax credit. Notably too, both provisions apply only to instances of
erroneous payment or illegal collection of internal revenue taxes.

MPC’s creditable input VAT not erroneously paid

For perspective, under Sec. 105 of the NIRC, creditable input VAT is an indirect tax which can be shifted or passed on to
the buyer, transferee, or lessee of the goods, properties, or services of the taxpayer. The fact that the subsequent sale
or transaction involves a wholly-tax exempt client, resulting in a zero-rated or effectively zero-rated transaction, does
not, standing alone, deprive the taxpayer of its right to a refund for any unutilized creditable input VAT, albeit the
erroneous, illegal, or wrongful payment angle does not enter the equation.

xxxx

Considering the foregoing discussion, it is clear that Sec. 112 (A) of the NIRC, providing a two-year prescriptive
period reckoned from the close of the taxable quarter when the relevant sales or transactions were made
pertaining to the creditable input VAT, applies to the instant case, and not to the other actions which refer
to erroneous payment of taxes.46 (Emphasis supplied.)

In view of the foregoing, we find that the CTA En Banc erroneously applied Sections 114(A) and 229 of the NIRC in
computing the two-year prescriptive period for claiming refund/credit of unutilized input VAT. To be clear, Section 112 of
the NIRC is the pertinent provision for the refund/credit of input VAT. Thus, the two-year period should be reckoned from
the close of the taxable quarter when the sales were made.

The administrative claim was timely filed

Bearing this in mind, we shall now proceed to determine whether the administrative claim was timely filed.

Relying on Article 13 of the Civil Code,47 which provides that a year is equivalent to 365 days, and taking into account
the fact that the year 2004 was a leap year, petitioner submits that the two-year period to file a claim for tax refund/
credit for the period July 1, 2002 to September 30, 2002 expired on September 29, 2004. 48

We do not agree.

In Commissioner of Internal Revenue v. Primetown Property Group, Inc., 49 we said that as between the Civil Code, which
provides that a year is equivalent to 365 days, and the Administrative Code of 1987, which states that a year is
composed of 12 calendar months, it is the latter that must prevail following the legal maxim, Lex posteriori derogat
priori.50 Thus:

Both Article 13 of the Civil Code and Section 31, Chapter VIII, Book I of the Administrative Code of 1987 deal with the
same subject matter – the computation of legal periods. Under the Civil Code, a year is equivalent to 365 days whether it
be a regular year or a leap year. Under the Administrative Code of 1987, however, a year is composed of 12 calendar
months. Needless to state, under the Administrative Code of 1987, the number of days is irrelevant.

There obviously exists a manifest incompatibility in the manner of

computing legal periods under the Civil Code and the Administrative Code of 1987. For this reason, we hold that Section
31, Chapter VIII, Book I of the Administrative Code of 1987, being the more recent law, governs the computation of legal
periods. Lex posteriori derogat priori.

Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case, the two-year prescriptive
period (reckoned from the time respondent filed its final adjusted return on April 14, 1998) consisted of 24 calendar
months, computed as follows:

We therefore hold that respondent's petition (filed on April 14, 2000) was filed on the last day of the 24th calendar
month from the day respondent filed its final adjusted return. Hence, it was filed within the reglementary period. 51

Applying this to the present case, the two-year period to file a claim for tax refund/credit for the period July 1, 2002 to
September 30, 2002 expired on September 30, 2004. Hence, respondent’s administrative claim was timely filed.

55
The filing of the judicial claim was premature

However, notwithstanding the timely filing of the administrative claim, we

are constrained to deny respondent’s claim for tax refund/credit for having been filed in violation of Section 112(D) of
the NIRC, which provides that:

SEC. 112. Refunds or Tax Credits of Input Tax. –

xxxx

(D) Period within which Refund or Tax Credit of Input Taxes shall be Made. – In proper cases, the Commissioner shall
grant a refund or issue the tax credit certificate for creditable input taxes within one hundred twenty (120) days from
the date of submission of complete documents in support of the application filed in accordance with Subsections (A) and
(B) hereof.

In case of full or partial denial of the claim for tax refund or tax credit, or the failure on the part of the Commissioner to
act on the application within the period prescribed above, the taxpayer affected may, within thirty (30) days from the
receipt of the decision denying the claim or after the expiration of the one hundred twenty day-period, appeal the
decision or the unacted claim with the Court of Tax Appeals. (Emphasis supplied.)

Section 112(D) of the NIRC clearly provides that the CIR has "120 days, from the date of the submission of the complete
documents in support of the application [for tax refund/credit]," within which to grant or deny the claim. In case of full or
partial denial by the CIR, the taxpayer’s recourse is to file an appeal before the CTA within 30 days from receipt of the
decision of the CIR. However, if after the 120-day period the CIR fails to act on the application for tax refund/credit, the
remedy of the taxpayer is to appeal the inaction of the CIR to CTA within 30 days.

In this case, the administrative and the judicial claims were simultaneously filed on September 30, 2004. Obviously,
respondent did not wait for the decision of the CIR or the lapse of the 120-day period. For this reason, we find the filing
of the judicial claim with the CTA premature.

Respondent’s assertion that the non-observance of the 120-day period is not fatal to the filing of a judicial claim as long
as both the administrative and the judicial claims are filed within the two-year prescriptive period 52 has no legal basis.

There is nothing in Section 112 of the NIRC to support respondent’s view. Subsection (A) of the said provision states that
"any VAT-registered person, whose sales are zero-rated or effectively zero-rated may, within two years after the close of
the taxable quarter when the sales were made, apply for the issuance of a tax credit certificate or refund of creditable
input tax due or paid attributable to such sales." The phrase "within two (2) years x x x apply for the issuance of a tax
credit certificate or refund" refers to applications for refund/credit filed with the CIR and not to appeals made to the CTA.
This is apparent in the first paragraph of subsection (D) of the same provision, which states that the CIR has "120 days
from the submission of complete documents in support of the application filed in accordance with Subsections (A) and
(B)" within which to decide on the claim.

In fact, applying the two-year period to judicial claims would render nugatory Section 112(D) of the NIRC, which already
provides for a specific period within which a taxpayer should appeal the decision or inaction of the CIR. The second
paragraph of Section 112(D) of the NIRC envisions two scenarios: (1) when a decision is issued by the CIR before the
lapse of the 120-day period; and (2) when no decision is made after the 120-day period. In both instances, the taxpayer
has 30 days within which to file an appeal with the CTA. As we see it then, the 120-day period is crucial in filing an
appeal with the CTA.

With regard to Commissioner of Internal Revenue v. Victorias Milling, Co., Inc.53 relied upon by respondent, we find the
same inapplicable as the tax provision involved in that case is Section 306, now Section 229 of the NIRC. And as already
discussed, Section 229 does not apply to refunds/credits of input VAT, such as the instant case.

In fine, the premature filing of respondent’s claim for refund/credit of input VAT before the CTA warrants a dismissal
inasmuch as no jurisdiction was acquired by the CTA.

WHEREFORE, the Petition is hereby GRANTED. The assailed July 30, 2008 Decision and the October 6, 2008 Resolution
of the Court of Tax Appeals are hereby REVERSED and SET ASIDE. The Court of Tax Appeals Second Division is
DIRECTED to dismiss CTA Case No. 7065 for having been prematurely filed.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

56
 RENATO C. CORONA
Chief Justice
Chairperson

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

l. ERECTORS, INC VS NLRC (GR NO. 71177, FEBRURY 29, 1988)

G.R. No. 71177 February 29, 1988

ERECTORS, INC., petitioner, 
vs.
THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION AND DANILO CRIS, respondents.

SARMIENTO, J.:

This case should not have reached this Tribunal. It should have, in fact, been terminated three years ago but for the
petitioner's counsels who had the temerity to cite a non-existent law with the obvious intention of delaying the
proceedings if not outrightly evading financial responsibility under the law. This actuation, indeed, is flagrant dishonesty.
We cannot let it pass.

But before we proceed, a recital of the background of the controversy is in order.

The private respondent, Danilo Cris, a contract worker as Earthworks Engineer in Taif, Kingdom of Saudi Arabia, filed the
case with the Philippine Overseas Employment Administration (POEA) on February 27, 1984 for the illegal termination of
his contract of employment with the petitioner herein, Erectors, Inc. The petitioner, as a defense, contended that the
private respondent was estopped from questioning the legality of his termination as he already voluntarily and freely
received his termination pay. The POEA, on September 27,1984, rendered a decision adverse to petitioner, the
dispositive portion of which reads:

WHEREFORE, judgment is rendered ordering the respondents ERECTORS, INC. and SOCIETE
AUXILLAIRE D'ENTERPRISES (S.A.E.) jointly and severally, to pay the complainant, DANILO CRIS the
sum of SEVEN THOUSAND ONE HUNDRED SIXTY SIX DOLLARS AND SIXTY SIX CENTS ($ 7,166.6), or its
equivalent in Philippine Currency at the time of actual payment, representing the unpaid salaries for
the unexpired term of complainant's contract. 1

The decision was received by the petitioner on October 25, 1984. Fifteen days later, or on November 9 of the same year,
the petitioner filed a motion for reconsideration with the respondent National Labor Relations Commission (NLRC). The
motion which was treated as an appeal was dismissed by the NLRC "for having been filed out of time." 2

The petitioner, through counsel, alleged that the respondent NLRC committed grave abuse of discretion in dismissing
the case and affirmed that the motion for reconsideration or appeal was seasonably filed explaining thus:

xxx xxx xxx

While it is true that between 25 October 1984 (date of receipt of the POEA decision) and 09 November
1984 (actual date of filing of petitioner's motion for reconsideration), there were actually fifteen (15)
calendar days, however, it can not be disputed that within said period there were only ten (10) working
days, and five (5) non-working or legal holidays, which were as follows:

October 26, 1984--Saturday

57
 October 27,1984--Sunday

November 1, 1984--All Saint's Day

November 3, 1984--Saturday

November 4,198--Sunday 3

xxx xxx xxx

In support of its contention, the petitioner cited two provisions allegedly of the 1984 POEA rules and procedures,
specifying Rule XXIV, sec. 1, and Rule XXV, sec. 2, thereof, which purportedly provide:

Rule XXV

xxx xxx xxx

Section 2. Finality of Decision, Order or Award — all decisions, orders or award shall become final after
the lapse of ten (10) working days from receipt of a copy thereof by the parties and no appeal has
been perfected within same period.

RULE XXIV

Section 1. Motion for Reconsideration. — The aggrieved party may within ten (10) working days from
receipt of the decision, order or resolution of the Administration, may file for a motion for
reconsideration; otherwise, the decision shall be final and executory (Emphasis supplied) 4

These cited rules do not exist. Nowhere in any law or rules relative to the POEA may the above provisions be found.

The POEA was created only on May 1, 1982 by virtue of Executive Order No. 797. Pursuant to the said Executive Order,
the then Minister of Labor, Blas F. Ople promulgated on September 5, 1983 the POEA Rules and Regulations on Overseas
Employment which took effect on January 1, 1984. These 1984 Rules were superseded on May 21, 1985 by the POEA
Rules & Regulations.

For the reason that the petitioner's appeal with the NLRC was filed on November 9,1984, the 1984 Rules should govern.
And this was precisely what the petitioner insisted upon — the POEA rules obtaining in 1984 must be applied. 5 Yet
therein, it is clear that the period for perfecting an appeal or a Motion for Reconsideration is ten (10) calendar days. The
pertinent rule on the matter is found in Book VII, Rule 5, of the 1984 Rules and Regulations on Overseas Employment
(POEA/MOLE) to wit:

Section 1. MOTION FOR RECONSIDERATION AND/OR APPEAL. The aggrieved party may, within ten
(10) calendar days from receipt of the decision, order or resolution file a motion for reconsideration
which shall specify in detail the particular errors and objections, otherwise the decision shall be final
and executory. Such motion for reconsideration shall be treated as an appeal as provided in this Rule
otherwise the same shall not be entertained.

The above rule is expressed in a language so simple and precise that there is no necessity to interpret it.

Moreover, as early as 1982, this Court, in the landmark case of Vir-Jen Shipping & Marine Services, Inc. vs.
NLRC6construed the ten (10) day period for filing of appeals 7 from decisions of Labor Arbiters or compulsory arbitrators
as ten (10) calendar days, as well as the raison d' etre for the shorter period, thus:

xxx xxx xxx

...if only because We believe that it is precisely in the interest of labor that the law has commanded
that labor cases be promptly, if not peremptorily, disposed of. Long periods for any acts to be done by
the contending parties can be taken advantage of more by management than by labor. Most labor
claims are decided in their favor and management is generally the appellant. Delay, in most instances,
gives the employers more opportunity not only to prepare even ingenious defense, what with well-paid
talented lawyers they can afford, but even to wear out the efforts and meager resources of the
workers, to the point that not infrequently the latter either give up or compromise for less than what is
due them.

xxx xxx xxx

The POEA rule applicable in this case is precisely in consonance with the above ruling in that it expressed in no uncertain
terms that the period for appeal is ten (10) calendar days. For "not even the Secretary of Labor has the power to amend
or alter in any material sense whatever the law itself unequivocably specifies or fixes." 8

58
There is, thus, no doubt that the law mandates that the period for filing a motion for reconsideration or appeal with the
NLRC is ten (10) calendar days and not ten (10) working days.

It is, therefore, obvious that the counsels for the petitioner deliberately tried to mislead this Court if only to suit their
client's ends. On this regard, said counsels have much explaining to do.

WHEREFORE, in view of the foregoing, the Petition is hereby DISMISSED and the assailed Resolution of the public
respondent, dated December 28, 1984, AFFIRMED. The Temporary Restraining Order issued by this Court on July 10,
1985 is hereby LIFTED. The counsels for the petitioner are also admonished for foisting a non-existent rule with the
warning that repetition of the same or similar offense will be dealt with more severely. With triple costs against the
petitioner.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Padilla, JJ., concur.

VIII. VOID FOR VAGUENESS DOCTRINE

a. The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its application. However, this Court has imposed
certain limitations by which a criminal statute, as in the challenged law at bar, may be scrutinized. This
Court has declared that facial invalidation or an "on-its-face" invalidation of criminal statutes is not
appropriate. We have so enunciated in no uncertain terms in Romualdez v. Sandiganbayan, thus:

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute.
With respect to such statute, the established rule is that 'one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its application might be
unconstitutional.' As has been pointed out, 'vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of
due process typically are invalidated [only] 'as applied' to a particular defendant.'" (underscoring
supplied)

"To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity."
While mentioned in passing in some cases, the void-for-vagueness concept has yet to find direct
application in our jurisdiction. In Yu Cong Eng v. Trinidad, the Bookkeeping Act was found
unconstitutional because it violated the equal protection clause, not because it was vague. Adiong v.
Comelec decreed as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec held
that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not
because of vagueness.

b. ESTRADA VS SANDIGANBAYAN (GR NO. 148560, NOVEMBER 19, 2001)

G.R. No. 148560               November 19, 2001

JOSEPH EJERCITO ESTRADA, petitioner, 

vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the individual
from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line
demarcating the limits on individuality beyond which the State cannot tread - asserting that "individual spontaneity"
must be allowed to flourish with very little regard to social interference - he veritably acknowledges that the exercise of
rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who
would endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of
their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.

59
Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of
maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that
would compel obeisance to its collective wisdom and inflict punishment for non-observance.

The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order,
carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary
socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured,
enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision,
between the law as the expression of the will of the State, and the zealous attempts by its members to preserve their
individuality and dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial
conscience is put to its severest test.

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and
Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the assailed law is so
defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He
therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly
because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt"
standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable under The
Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused to due process
and to be informed of the nature and cause of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are
Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any
person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by any combination or series of the following means or similar
schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;

(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in connection with any government contract or project or by
reason of the office or position of the public office concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any
of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their
subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of
interest or participation including the promise of future employment in any business enterprise or undertaking;

(5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or

implementation of decrees and orders intended to benefit particular persons or special interests; or

(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic
of the Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as
described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The
court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties
and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State (underscoring
supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each
and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern
of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied).

On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed
as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562,
inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct

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and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised
Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085).

On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary
investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for
reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an opportunity
to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised
were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of
probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged
were never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law.

On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a
probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On
25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan.

On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts
alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for
vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted
his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the
instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires
less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due
process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power
of Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic
principle that a legislative measure is presumed to be in harmony with the Constitution. 3 Courts invariably train their
sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden
for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the
presumption is based on the deference the judicial branch accords to its coordinate branch - the legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is
ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts
and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether
the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with
caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality,
invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain
whether an interpretation is fairly possible to sidestep the question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as there is some basis for the decision of the court,
the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds.
Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it
must be struck down on sight lest the positive commands of the fundamental law be unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute.
He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such
a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put
by Justice Malcolm, "To doubt is to sustain."5 And petitioner has miserably failed in the instant case to discharge his
burden and overcome the presumption of constitutionality of the Plunder Law.

As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the
accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct
and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and
particularity. Thus -

1. That the offender is a public officer who acts by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following
overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage,
kickback or any other form of pecuniary benefits from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public officer; (c) by the illegal or
fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions,
agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by
obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest
or participation including the promise of future employment in any business enterprise or undertaking; (e) by
establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of

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 official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at
least ₱50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what
conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its
application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying
the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute
punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least ₱50,000,000.00 through a
series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the
various elements of the offense which petitioner is alleged to have committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and
a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte,
Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and
John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of
R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable
Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY,
RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER
PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and
acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of
FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (₱4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR Aseries of overt OR criminal acts, OR SIMILAR
SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE

AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF
PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose
'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY,

for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION
PESOS (₱130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS
(₱200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by
himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a.Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service
Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social
Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION
IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED
SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS ( ₱1,102,965,607.50) AND
MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND
FOUR HUNDRED FIFTY PESOS (₱744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS
ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND
FIFTY SEVEN PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50); AND BY COLLECTING OR
RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF
STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (₱189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART
OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR

ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (₱3,233,104,173.17) AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse petitioner
in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily
understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal
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assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an
intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and
"series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the
word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being
impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation
against him, hence, violative of his fundamental right to due process.

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because
general terms are used therein, or because of the employment of terms without defining them; 6 much less do we have to
define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to
define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its
inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law
so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the
Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural,
plain and ordinary acceptation and signification, 7 unless it is evident that the legislature intended a technical or special
legal meaning to those words.8 The intention of the lawmakers - who are, ordinarily, untrained philologists and
lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate
Dictionary contains the following commonly accepted definition of the words "combination" and "series:"

Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close
relationship as to obscure individual characters.

Series - a number of things or events of the same class coming one after another in spatial and temporal succession.

That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely
evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES OF
OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean
to say, if there are two or more means, we mean to say that number one and two or number one and something else are
included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be
included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.

REP. GARCIA: Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

REP. GARCIA: Yes.

REP. ISIDRO: When we say combination, it seems that -

REP. GARCIA: Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.

REP. GARCIA: No, no, not twice.

REP. ISIDRO: Not twice?

REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It cannot be a
repetition of the same act.

REP. GARCIA: That be referred to series, yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

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REP. GARCIA: A series.

REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series, we seem to say that two
or more, di ba?

REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion
because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or
criminal acts. So x x x x

REP. GARCIA: Series. One after the other eh di....

SEN. TANADA: So that would fall under the term "series?"

REP. GARCIA: Series, oo.

REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....

REP. GARCIA: Its not... Two misappropriations will not be combination. Series.

REP. ISIDRO: So, it is not a combination?

REP. GARCIA: Yes.

REP. ISIDRO: When you say combination, two different?

REP. GARCIA: Yes.

SEN. TANADA: Two different.

REP. ISIDRO: Two different acts.

REP. GARCIA: For example, ha...

REP. ISIDRO: Now a series, meaning, repetition...

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may already result in
such a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt or," to read, therefore:
"or conspiracy COMMITTED by criminal acts such as." Remove the idea of necessitating "a series." Anyway, the criminal
acts are in the plural.

SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.

THE PRESIDENT: Probably two or more would be....

SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.

SENATOR TANADA: Accepted, Mr. President x x x x

THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say "acts of
plunder" there should be, at least, two or more.

SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.

Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different
categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1),
and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3).

On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same
category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury,
all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning
for "combination" and "series," it would have taken greater pains in specifically providing for it in the law.

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As for "pattern," we agree with the observations of the Sandiganbayan 9 that this term is sufficiently defined in Sec. 4, in
relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or
criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate
or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said
common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or
method' which the principal accused and public officer and others conniving with him follow to achieve the aforesaid
common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple
accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to
penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced.
The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing
a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can
understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is
utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the
Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by
it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle. 10 But the doctrine does not apply as against legislations that
are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to
those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by
proper construction, while no challenge may be mounted as against the second whenever directed against such
activities.11 With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from
ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently
definite warning as to the proscribed conduct when measured by common understanding and practice. 12It must be
stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will
not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all
other statutes.

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of
the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates
the first essential of due process of law." 13 The overbreadth doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms."14

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling
effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to
all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity." 15 The possible harm to society in permitting some unprotected speech to go unpunished
is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to
fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their
very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting
laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free
speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for
testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we
have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." 16 In Broadrick v.
Oklahoma,17 the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which,
by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully,
since the challenger must establish that no set of circumstances exists under which the Act would be valid." 18 As for the
vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of
the law as applied to the conduct of others." 19

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In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be
made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that
"one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in which its application might be
unconstitutional." 20 As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant." 21 Consequently, there is no basis for petitioner's claim that this
Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be
applied to parties not before the Court whose activities are constitutionally protected. 22 It constitutes a departure from
the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts. 23 But, as the U.S. Supreme Court pointed out in Younger v. Harris24

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case
that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort,"25 and is generally disfavored.26 In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the
conduct with which the defendant is charged.27

In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously
claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be
created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific
precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To
be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of
the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the
Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the
Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of
its legal implications and sound constitutional anchorage.

The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and emphasize the point that
courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its
details, and is susceptible of no reasonable construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Actfor being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and
elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its
vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks
to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a)
giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad
faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their
official function and that their right to be informed of the nature and cause of the accusation against them was violated
because they were left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted.

In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer
from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and
inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the
statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment
charges three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized
(Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers,
Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978,
Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act
of the public officer in:

x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x x
(Section 3 [e], Rep. Act 3019, as amended).

It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in
the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or
preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.

66
In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation.
Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional.

On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the
immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of
plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and
every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all
other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of
Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal.29 The use of the "reasonable doubt" standard is indispensable to command the
respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal
law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is
also important in our free society that every individual going about his ordinary affairs has confidence that his
government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with
utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law
as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond
reasonable doubt of every fact necessary to constitute the crime with which he is charged. 30 The following exchanges
between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of
Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must be
proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the
information, does that not work against the right of the accused especially so if the amount committed, say, by
falsification is less than ₱100 million, but the totality of the crime committed is ₱100 million since there is malversation,
bribery, falsification of public document, coercion, theft?

MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt. What
is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr. Speaker,
there is an enumeration of the things taken by the robber in the information – three pairs of pants, pieces of jewelry.
These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for which he
was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required
to be proved beyond reasonable doubt is the element of the offense.

MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is
very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery,
he was able to accumulate only ₱50,000 and in the crime of extortion, he was only able to accumulate ₱1 million. Now,
when we add the totality of the other acts as required under this bill through the interpretation on the rule of evidence,
it is just one single act, so how can we now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need to
prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount
involved is ₱100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the total
amount would be ₱110 or ₱120 million, but there are certain acts that could not be proved, so, we will sum up the
amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved
beyond reasonable doubt, is ₱100 million, then there is a crime of plunder (underscoring supplied).

It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in
the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or
element necessary to constitute the crime.

The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal
misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a
number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at
least ₱50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been
committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire
ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having
committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being
sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to
at least ₱50,000,000.00.31

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing
hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt
the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This

67
conclusion is consistent with reason and common sense. There would be no other explanation for a combination or
series of

overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire
ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern
as it necessarily follows with the establishment of a series or combination of the predicate acts.

Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important
element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive
element of the crime," such that without it the accused cannot be convicted of plunder -

JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying Section 4
on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of?

ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not
plunder.

JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without
applying Section 4, can you not have a conviction under the Plunder Law?

ATTY. AGABIN: Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation of
the Plunder Law?

ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x

JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt on
the acts charged constituting plunder?

ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a
substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4.

JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are concerned
that you do not have to go that far by applying Section 4?

ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder and
that cannot be avoided by the prosecution.32

We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood
from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and
opening clause of Sec. 4 is clear and unequivocal:

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x

It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a
purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only
operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without
invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient
evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond
reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons
advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the
demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA
7080 provides for a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or circumstance
is held invalid, the remaining provisions of this Act and the application of such provisions to other persons or
circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of
some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should
accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be
achieved.

As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of
criminal intent. Thus, he says, in his Concurring Opinion -

68
x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution
for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully,
unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner.

In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the
statute is void, petitioner cites the following remarks of Senator Tañada made during the deliberation on S.B. No. 733:

SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be evidence for each and every
individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of
plunder.33

However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript quoted by petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in
the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases?

SENATOR TAÑADA: Yes, Mr. President . . .34

Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove
each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable
doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts
constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens
rea must be shown.

Indeed, §2 provides that -

Any person who participated with the said public officer in the commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by
the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-
Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the
offender is determined by his criminal intent. It is true that §2 refers to "any person who participates with the said public
officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however,
that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the
generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean." 35

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the
affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion
perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echegaray:36

The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because
life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the
normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to
dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of
the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal
detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim
or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation,
destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which
are penalized by reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts
in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop
and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted
the government and impoverished the population, the Philippine Government must muster the political will to dismantle
the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures
of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most
basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual
threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this
context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in
death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be
allowed to cause further destruction and damage to society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when
the acts punished are inherently immoral or inherently wrong, they are mala in se37 and it does not matter that such acts
are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed,
it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing
Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts.

69
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds.
Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been
eternally consigned by People v. Echegaray38 to the archives of jurisprudential history. The declaration of this Court
therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect,
assimilated in the Constitution now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have
shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as
unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic
and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically
catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly
tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the
moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to
ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office.

These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal
the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual
prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people
that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and
prejudices, shall we emerge triumphant in the midst of ferment.

PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659,
is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit.

SO ORDERED.

Buena, and De Leon, Jr., JJ., concur.

Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.

Footnotes

1 
Approved 12 July 1991 and took effect 8 October 1991.

2 
Approved 13 December 1993 and took effect 31 December 1993.

3 
Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240 SCRA 644.

4 
G.R. No. 87001, 4 December 1989, 179 SCRA 828.

5 
Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925).

6 
82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768.

7 
Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA 430, 448.

8 
PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213 SCRA 16, 26.

9 
Resolution of 9 July 2001.

10 
See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196.

11 
Ibid.

12 
State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.

Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-Malate Hotel and
13 

Motel Operators Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967).

70
 NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 (1958); Shelton v. Tucker 364 U.S. 479, 5 L. Ed.
14 

2d 231 (1960).

15 
Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 (1972) (internal quotation marks omitted).

United States v. Salerno, 481 U.S. 739, 745 95 L. Ed 2d 697, 707 (1987); see also People v. De la Piedra, G.R.
16 

No. 121777, 24 January 2001.

17 
413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973).

18 
United States v. Salerno, supra.

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 369
19 

(1982).

United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 (1960). The paradigmatic case is Yazoo &
20 

Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L. Ed. 193 (1912).

21 
G. Gunther & K. Sullivan, Constitutional Law 1299 (2001).

Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv. L. Rev. 1321 (2000)
22 

arguing that, in an important sense, as applied challenges are the basic building blocks of constitutional
adjudication and that determinations that statutes are facially invalid properly occur only as logical outgrowths
of ruling on whether statutes may be applied to particular litigants on particular facts.

Constitution, Art. VIII, §1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158 (1936); "[T]he
23 

power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of
argument by the parties, and limited further to be constitutional question raised or the very lis mota presented.
Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities."

401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord, United States v. Raines, 362 U.S. 17, 4 L. Ed. 2d 524
24 

(1960); Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 106 L. Ed. 2d 388 (1989).

Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841; National Endowment for the Arts v. Finley, 524
25 

U.S. 569, 580 (1998).

FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d 603 (1990); Cruz v. Secretary of Environment and
26 

Natural Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J., Separate Opinion).

27 
United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-6 (1963).

28 
G.R. No. 57841, 30 July 1982, 115 SCRA 793.

29 
People v. Ganguso, G.R. No. 115430, 23 November 1995, 250 SCRA 268, 274-275.

30 
People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 360.

Then Senate President Jovito R. Salonga construed in brief the provision, thuswise: "If there are let’s say 150
31 

crimes all in all, criminal acts, whether bribery, misappropriation, malversation, extortion, you need not prove
all those beyond reasonable doubt. If you can prove by pattern, let’s say 10, but each must be proved beyond
reasonable doubt, you do not have to prove 150 crimes. That’s the meaning of this (Deliberations of Committee
on Constitutional Amendments and Revision of Laws, 15 November 1988, cited in the Sandiganbayan
Resolution of 9 July 2001).

32 
TSN, 18 September 2001, pp. 115-121.

33 
4 Record of the Senate 1316, 5 June 1989.

34 
Ibid.

35 
Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).

36 
267 SCRA 682, 721-2 (1997) (emphasis added).

37 
Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).

71
 38 
G.R. No. 117472, 7 February 1997, 267 SCRA 682.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

KAPUNAN, J.:

The primary duty of the Court is to render justice. The resolution of the issues brought before it must be grounded on
law, justice and the basic tenets of due process, unswayed by the passions of the day or the clamor of the multitudes,
guided only by its members’ honest conscience, clean hearts and their unsullied conviction to do what is right under the
law.

The issues posed by the instant petition are quite difficult. The task of the Court to resolve the same is made more
daunting because the case involves a former President of the Republic who, in the eyes of certain sectors of society,
deserves to be punished. But the mandate of the Court is to decide these issues solely on the basis of law and due
process, and regardless of the personalities involved. For indeed, the rule of law and the right to due process are
immutable principles that should apply to all, even to those we hate. As Fr. Joaquin G. Bernas, S.J., a noted
constitutionalist, aptly puts it--

x x x the greater disaster would be if the Supreme Court should heed the clamor for conviction and convict Estrada even
under an unconstitutional law but of the belief that Estrada deserves to be punished. That would be tantamount to a rule
of men and not of law.1

The Basic Facts

The petition before us questions the constitutionality of Republic Act No. 7080 (R.A. No. 7080 or Plunder Law), as
amended by Republic Act No. 7659,2 entitled "An Act Defining and Penalizing the Crime of Plunder." 3 This original
petition for certiorari and prohibition against Respondent Third Division of the Sandiganbayan filed by petitioner Joseph
Ejercito Estrada assails Respondent court’s Resolution, dated July 9, 2001, denying his Motion to Quash the information
against him in Criminal Case No. 26558 for Plunder. Petitioner likewise prays that the Sandiganbayan be prohibited and
enjoined from proceeding with his arraignment and trial in Criminal Case No. 26558 due to the unconstitutionality of R.
A. No. 7080.

On the heels of the finality of the joint decision of this Court in G.R. No. 146710 (Estrada vs. Desierto, et al.) and in G.R.
No. 146738 (Estrada vs. Macapagal-Arroyo), promulgated on April 3, 2001, upholding the constitutionality of President
Gloria Macapagal-Arroyo’s assumption of office as President of the Republic of the Philippines and declaring that the
former President Joseph Ejercito Estrada no longer enjoyed immunity from suit, the Ombudsman filed eight (8)
Informations against Estrada. These cases were Criminal Case No. 26558 (for Plunder); Criminal Case No. 26559 (for
Violation of Sec. 3[a] of Republic Act No. 3019); Criminal Case No. 26560 (for Violation of Sec. 3[a] of R.A. No. 3019);
Criminal Case No. 26561 (for Violation of Sec. 3[e] of R.A. 3019); Criminal Case No. 26562 (for Violation of Sec. 3[e] of
R.A. No. 3019); Criminal Case No. 26563 (for Violation of Sec. 7[d] of R.A. No. 6713); Criminal Case No. 26564 (for
Perjury); and Criminal Case No. 26565 (for Illegal Use of Alias).

The aforementioned informations were raffled to the five divisions of the Sandiganbayan. Criminal Case No. 26558 was
raffled to the Third Division of said court. The amended information against petitioner charging violations of Section 2, in
relation to Section (d) (1) (2) of the statute reads:

That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable
Court, accused Joseph Ejercito Estrada, by himself and in conspiracy with his co-accused, business associates and
persons heretofore named, by taking advantage of his official position, authority, connection or influence as President of
the Republic of the Philippines, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire ill-
gotten wealth, and unjustly enrich himself in the aggregate amount of P4,097,804,173.17, more or less, through a
combination and series of overt and criminal acts, described as follows:

(a) by receiving, collecting, directly or indirectly, on many instances, so-called "jueteng money" from gambling
operators in connivance with co-accused Jose ‘Jinggoy’ Estrada, Yolanda T. Ricaforte and Edward Serapio, as
witnessed by Gov. Luis ‘Chavit’ Singson, among other witnesses, in the aggregate amount of FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000.000.00), more or less, in consideration of their protection from arrest or
interference by law enforcers in their illegal "jueteng" activities; and

(b) by misappropriating, converting and misusing for his gain and benefit public fund in the amount of ONE
HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of One Hundred

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 Seventy Million Pesos (P170,000,000.00) tobacco excise tax share allocated for the Province of Ilocos Sur under
R.A. No. 7171, in conspiracy with co-accused Charlie ‘Atong’ Ang, Alma Alfaro, Eleuterio Tan a.k.a. Eleuterio
Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, as witnessed by Gov. Luis ‘Chavit’ Singson, among other
witnesses; and

(c) by directing, ordering and compelling the Government Service Insurance System (GSIS) and the Social
Security System (SSS) to purchase and buy a combined total of 681,733,000 shares of stock of the Belle
Corporation in the aggregate gross value of One Billion Eight Hundred Forty-Seven Million Five Hundred Seventy
Eight Thousand Pesos and Fifty Centavos(P1,847,578,057.50), for the purpose of collecting for his personal gain
and benefit, as in fact he did collect and receive the sum of ONE HUNDRED EIGHTY NINE MILLION SEVEN
HUNDRED THOUSAND FIFTY SEVEN PESOS (P189,700,000.00) as commission for said stock purchase; and

(d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) comprising his unexplained wealth acquired, accumulated and amassed by him under his
account name "Jose Velarde" with Equitable PCI Bank:

to the damage and prejudice of the Filipino people and the Republic of the Philippines.

CONTRARY TO LAW.4

On April 16 and 17, 2001, the Ombudsman filed an Ex-Parte Manifestation to Withdraw Information in Criminal Case Nos.
26559, 26560, 26561, 26562 and 26563. Petitioner registered his objection to the Ombudsman’s motion to withdraw.
The divisions of the Sandiganbayan to which said cases were assigned granted the withdrawal of the informations, save
for that in Criminal Case No. 26561. At present, the Order of the First Division of the Sandiganbayan denying the
Ombudsman’s motion to withdraw in Criminal Case No. 26561 is still under reconsideration.

In Criminal Case No. 26558, petitioner filed on April 11, 2001 an Omnibus Motion for the remand of the case to the Office
of the Ombudsman for: (1) the conduct of a preliminary investigation as regards specification "d" of the accusations in
the information in said case; and (2) reconsideration/reinvestigation of the offenses in specifications "a," "b" and "c" to
enable petitioner to file his counter-affidavits as well as other necessary documents.

On April 25, 2001, the Third Division of the Sandiganbayan issued a Resolution finding that:

(p)robable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President
Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramon Tan or Mr. Uy and Jane Doe a.k.a. Delia Rajas.

Subsequently, on May 31, 2001, the Third Division of the Sandiganbayan issued a Resolution denying petitioner’s
Omnibus Motion.

On June 15, 2001, petitioner filed a Motion for Reconsideration of said Resolution but the same was denied in a
Resolution of June 25, 2001.

Meanwhile, on June 14, 2001, petitioner filed a Motion to Quash the information in Criminal Case No. 26558, invoking the
following grounds: (1) the facts charged do not constitute an indictable offense as R.A. No. 7080, the statute on which it
is based, is unconstitutional; and (2) the information charges more than one offense.

The People of the Philippines filed an Opposition thereto on June 21, 2001. Petitioner filed his Reply to the Opposition on
June 28, 2001.

On July 9, 2001, the Third Division of the Sandiganbayan issued its Resolution denying petitioner’s motion to quash.

Petitioner thus filed the instant petition for certiorari and prohibition, claiming that the Sandiganbayan committed grave
abuse of discretion in denying his motion to quash the information in Criminal Case No. 26558. Petitioner argues that
R.A. No. 7080 is unconstitutional on the following grounds:

I. IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS VAGUENESS

II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO KNOW THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM

III. IT VIOLATES THE DUE PROCESS CLAUSE AND THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE BY
LOWERING THE QUANTUM OF EVIDENCE NECESSARY FOR PROVING THE COMPONENT ELEMENTS OF PLUNDER

IV. IT IS BEYOND THE CONSTITUTIONAL POWER OF THE LEGISLATURE TO DELIMIT THE REASONABLE DOUBT
STANDARD AND TO ABOLISH THE ELEMENT OF MENS REA IN MALA IN SECRIMES BY CONVERTING THESE
TO MALA PROHIBITA, IN VIOLATION OF THE DUE PROCESS CONCEPT OF CRIMINAL RESPONSIBILITY. 5

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The provisions of law involved

Section 2 of R.A. No. 7080 provides:

Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance with members of his
family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates
or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof
in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in
the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as
provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten
wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the
deposit or investment thereof forfeited in favor of the State. (As amended by Sec. 12, RA No. 7659.)

Section 1(d) of the same law defines "ill-gotten wealth" as "any asset, property, business enterprise or material
possession of any person within the purview of Section Two (2)" hereof, acquired by him directly or indirectly through
dummies, nominees, agents, subordinates, and/or business associates by any combination or series of the following
means or similar schemes:

1. Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury;

2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in connection with any government contract or project or by
reason of the office or position of the public officer concerned;

3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any
of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their
subsidiaries;

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of
interest or participation including the promise of future employment in any business enterprise or undertaking;

5. By establishing agricultural, industrial or commercial monopolies or other combination and/or

implementation of decrees and orders intended to benefit particular persons or special interests; or

6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.6

On the other hand, Section 4 states:

Rule of Evidence - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every
criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy.

Petitioner’s theory

Petitioner asserts that R.A. No. 7080 is vague and overbroad on its face, and suffers from structural deficiency and
ambiguity.7 In sum, he maintains that the law does not afford an ordinary person reasonable notice that his actuation
will constitute a criminal offense. More particularly, petitioner argues that the terms "combination" and "series" are not
clearly defined, citing that in a number of cases, the United States (U.S.) federal courts in deciding cases under the
Racketeer Influenced and Corrupt Organizations Act (RICO law), after which the Plunder Law was patterned, have given
different interpretations to "series of acts or transactions." 8 In addition, he terms "raid on the public treasury," "receiving
or accepting a gift," "commission," "kickbacks," "illegal or fraudulent conveyance or disposition of assets," "monopolies
or other combinations," "special interests," "taking undue advantage of official position," "unjustly enrich" all suffer from
overbreadth which is a form of vagueness.9

In arguing that the law on plunder is vague and impermissibly broad, petitioner points out that the terms "combination"
and ‘series" used in the phrase "any combination or series of the following means or similar schemes" are not defined
under the statute. The use of these terms in the law allegedly raises several questions as to their meaning and import.

Petitioner posits the following queries: "Does it (referring to the term "series") mean two, three, four, of the overt or
criminal acts listed in Section 1(d)? Would it mean two or more related enterprises falling under at least two of the
means or ‘similar schemes’ listed in the law, or just a joint criminal enterprise? Would it require
substantial identity of facts and participants, or merely a common pattern of action? Would it imply close
connection between acts, or a direct relationship between the charges? Does the term mean a factual relationship
between acts or merely a common plan among conspirators?"10

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The term "combination" is allegedly equally equivocal. According to petitioner, it is not clear from the law if said term
covers time, place, manner of commission, or the principal characters. Thus petitioner asks: "Does it (referring to the
term "combination") include any two or more acts, whether legal or illegal, or does the law require that the combination
must include at least two of the ‘means or similar schemes’ laid down in R.A. 7080? Does it cover transactions that
have occurred in the same place or area, or in different places, no matter how far apart? Does ‘combination’
include any two or more overt acts, no matter how far apart in time, or does it contemplate acts committed within
a short period of time? Does the ‘combination’ cover the modus operandi of the crimes, or merely the evidence
to be used at the trial?"11

It is also argued that the phrase "pattern of overt or criminal acts indicative of the overall scheme or conspiracy" adds to
the vagueness of the law because "pattern" is not defined therein and is not included in the definition of the crime of
plunder even though it is an essential element of said crime. 12

Petitioner also maintains that the Plunder Law violates the due process clause and the constitutional presumption of
innocence by lowering the quantum of evidence necessary for proving the component elements of plunder because
Section 4 does not require that each and every criminal act done by the accused in furtherance of the scheme or
conspiracy be proved, "it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy." 13

Finally, petitioner alleges that it is beyond the power of Congress to delimit the reasonable doubt standard and to
abolish the element of mens rea in mala in se crimes by converting these to mala prohibita, thereby making it easier for
the prosecution to prove malversation, bribery, estafa and other crimes committed by public officers since criminal
intent need not be established.14

Considering the infringement to the constitutionally-guaranteed right to due process of an accused, petitioner contends
that R.A. No. 7080 cannot be accorded any presumption of constitutional validity.

Respondents’ theory

On the other hand, Respondents argue that the "particular elements constituting the crime of plunder" are stated with
"definiteness and certainty," as follows:

(1) There is a public officer who acts by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other persons;

(2) There is an amassing, accumulating or acquiring of ill-gotten wealth;

(3) The total amount of ill-gotten wealth so amassed, accumulated or acquired is at least Fifty Million Pesos
(P50,000,000.00); and

(4) The ill-gotten wealth, which is defined as any asset, property, business enterprise or material possession of
any person within the purview of Section Two (2) of R.A. No. 7080, was acquired by him directly or indirectly
through dummies, nominees, agents, subordinates, and/or business associates by any combination or series of
the means or similar schemes enumerated in Section 1(d). 15

Moreover, Respondents maintain that assuming that there is some vagueness in the law, it need not be declared
unconstitutional but may be clarified by judicial construction.16 Respondents further add that the ordinary import of the
terms combination" and "series" should prevail, as can be gleaned from the deliberations of the Congress in the course
of its passage of the law. According to respondents, "series of overt criminal acts" simply mean a repetition of at least
two of any of those enumerated acts found in Section 1(d) of R.A. 7080. And "combination" means a product of
combining of at least one of any of those enumerated acts described in Section 1(d) with at least one of any of the other
acts so enumerated. Respondents score petitioner for arguing on the basis of federal courts’ decisions on the RICO law,
citing that the U.S. courts have consistently rejected the contention that said law is void for being vague. 17

Respondents deny that the Plunder Law dispenses with the requirement of proof beyond reasonable doubt. While there
may be no necessity to prove each and every other act done by the accused in furtherance of the scheme to acquire ill-
gotten wealth, it is still necessary for the prosecution to prove beyond reasonable doubt the pattern of overt or criminal
acts indicative of the overall scheme or conspiracy, as well as all the other elements of the offense of
plunder.18 Respondents also point out that conspiracy itself is not punishable under the Plunder Law, which deals with
conspiracy as a means of incurring criminal liability. 19

Respondents likewise contend that it is within the inherent powers and wisdom of the legislature to determine which
acts are mala prohibita in the same way that it can declare punishable an act which is inherently not criminal in nature. 20

In conclusion, Respondents assert that petitioner has failed to overcome the presumption of constitutionality of R.A. No.
7080.

Petitioner’s Reply

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Petitioner, in his Reply to Comment, draws attention to Section 4, arguing that the provision states the "most important
element, which is the common thread that ties the component acts together: "a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy21 and raises the following questions:

(a) Reference is made to a "pattern of overt or criminal acts." The disjunctive "or" is used. Will a pattern of
acts, which are overt but not criminal in themselves, be indicative of an overall unlawful scheme or
conspiracy?

(b) Under what specific facts or circumstances will a "pattern" be "indicative" of the overall unlawful scheme
or conspiracy?

(c) Under what specific facts or circumstances will the required "pattern" or "scheme" even be said to be
present or to exist?

(d) When is there an "unlawful scheme or conspiracy?" 22

Issues raised in the oral arguments

Oral arguments were heard on September 18, 2001. At said hearing, the Court defined the issues for resolution as
follows:

1.) WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL FOR BEING VAGUE;

2) WHETHER R.A. NO. 7080 REQUIRES LESS EVIDENCE FOR PROVING THE PREDICATE CRIMES OF PLUNDER AND
THEREFORE VIOLATES THE RIGHT OF THE ACCUSED TO DUE PROCESS; and

3) WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080 IS A MALUM PROHIBITUM AND IF SO, WHETHER IT IS
WITHIN THE POWER OF CONGRESS TO SO CLASSIFY THE SAME. 23

Thereafter, both parties filed their respective memoranda in which they discussed the points which they raised in their
earlier pleadings and during the hearing.

I believe that there is merit in the petition.

A penal statute which violates constitutional

guarantees of individual rights is void.

Every law enacted by Congress enjoys a presumption of constitutionality, 24 and the presumption prevails in the absence
of contrary evidence.25 A criminal statute is generally valid if it does not violate constitutional guarantees of individual
rights.26 Conversely, when a constitutionally protected right of an individual is in danger of being trampled
upon by a criminal statute, such law must be struck down for being void. 27

One of the fundamental requirements imposed by the Constitution upon criminal statutes is that pertaining to clarity and
definiteness. Statutes, particularly penal laws, that fall short of this requirement have been declared unconstitutional for
being vague. This "void-for-vagueness" doctrine is rooted in the basic concept of fairness as well as the due process
clause of the Constitution.

The Constitution guarantees both substantive and procedural due process 28 as well as the right of the accused to be
informed of the nature and cause of the accusation against him. 29 A criminal statute should not be so vague and
uncertain that "men of common intelligence must necessarily guess as to its meaning and differ as to its application. 30

There are three distinct considerations for the vagueness doctrine. First, the doctrine is designed to ensure that
individuals are properly warned ex ante of the criminal consequences of their conduct. This "fair notice" rationale was
articulated in United States v. Harriss:31

The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man
shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. 32

Second, and viewed as more important, the doctrine is intended to prevent arbitrary and discriminatory law
enforcement.33 Vague laws are invariably "standardless" and as such, they afford too great an opportunity for criminal
enforcement to be left to the unfettered discretion of police officers and prosecutors. 34 Third, vague laws fail to provide
sufficient guidance to judges who are charged with interpreting statutes. Where a statute is too vague to provide
sufficient guidance, the judiciary is arguably placed in the position of usurping the proper function of the legislature by
"making the law" rather than interpreting it.35

While the dictum that laws be clear and definite does not require Congress to spell out with mathematical certainty the
standards to which an individual must conform his conduct,36 it is necessary that statutes provide reasonable standards
to guide prospective conduct.37 And where a statute imposes criminal sanctions, the standard of certainty is

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higher.38 The penalty imposable on the person found guilty of violating R.A. No. 7080 is reclusion perpetua to
death.39 Given such penalty, the standard of clarity and definiteness required of R.A. No. 7080 is unarguably higher
than that of other laws.40

Void-for-vagueness doctrine
applies to criminal laws.

A view has been proffered that "vagueness and overbreadth doctrines are not applicable to penal laws." 41 These two
concepts, while related, are distinct from each other.42 On one hand, the doctrine of overbreadth applies generally to
statutes that infringe upon freedom of speech.43 On the other hand, the "void-for-vagueness" doctrine applies to criminal
laws, not merely those that regulate speech or other fundamental constitutional rights. 44 The fact that a particular
criminal statute does not infringe upon free speech does not mean that a facial challenge to the statute on vagueness
grounds cannot succeed.45

As earlier intimated, the "vagueness doctrine" is anchored on the constitutionally-enshrined right to due process of law.
Thus, as in this case that the "life, liberty and property" of petitioner is involved, the Court should not hesitate to look
into whether a criminal statute has sufficiently complied with the elementary requirements of definiteness and clarity. It
is an erroneous argument that the Court cannot apply the vagueness doctrine to penal laws. Such stance is
tantamount to saying that no criminal law can be challenged however repugnant it is to the constitutional
right to due process.

While admittedly, penal statutes are worded in reasonably general terms to accomplish the legislature’s objective of
protecting the public from socially harmful conduct, this should not prevent a vagueness challenge in cases where a
penal statute is so indeterminate as to cause the average person to guess at its meaning and application. For if a statute
infringing upon freedom of speech may be challenged for being vague because such right is considered as
fundamental, with more reason should a vagueness challenge with respect to a penal statute be allowed since the
latter involve deprivation of liberty, and even of life which, inarguably, are rights as important as, if not more than,
free speech.

It has been incorrectly suggested 46 that petitioner cannot mount a "facial challenge" to the Plunder Law, and that "facial"
or "on its face" challenges seek the total invalidation of a statute. 47 Citing Broadrick v. Oklahoma,48 it is also opined that
"claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate
only spoken words" and that "overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it is argued further that "on
its face invalidation of statutes has been described as ‘manifestly strong medicine,’ to be employed ‘sparingly and only
as a last resort.’" A reading of Broadrick, however, shows that the doctrine involved therein was the doctrine of
overbreadth. Its application to the present case is thus doubtful considering that the thrust at hand is to determine
whether the Plunder Law can survive the vagueness challenge mounted by petitioner. A noted authority on
constitutional law, Professor Lockhart, explained that "the Court will resolve them (vagueness challenges) in ways
different from the approaches it has fashioned in the law of overbreadth." 49 Thus, in at least two cases,50 the U.S. courts
allowed the facial challenges to vague criminal statutes even if these did not implicate free speech

In Kolender v. Lawson,51 petitioners assailed the constitutionality of a California criminal statute which required persons
who loiter or wander on the streets to provide a credible and reasonable identification and to account for their presence
when requested by a peace officer under circumstances that would justify a valid stop. The U.S. Supreme Court held that
said statute was unconstitutionally vague on its face within the meaning of the due process clause of the Fourteenth
Amendment because it encourages arbitrary enforcement by failing to clarify what is contemplated by the requirement
that a suspect provide a "credible and reasonable identification." Springfield vs. Oklahoma52 on the other hand involved
a challenge to a Columbus city ordinance banning certain assault weapons. The court therein stated that a criminal
statute may be facially invalid even if it has some conceivable application. It went on to rule that the assailed
ordinance’s definition of "assault weapon" was unconstitutionally vague, because it was "fundamentally irrational and
impossible to apply consistently by the buying public, the sportsman, the law enforcement officer, the prosecutor or the
judge."53

It is incorrect to state that petitioner has made "little effort to show the alleged invalidity of the statute as applied to
him, as he allegedly "attacks ‘on their face’ not only §§ 1(d)(1) and (2) of R.A. 7080 under which he is charged, but also
its other provisions which deal with plunder committed by illegal or fraudulent disposition of government assets (§1(d)
(3)), acquisition of interest in business (§1(d)(4)), and establishment of monopolies and combinations or implementation
of decrees intended to benefit particular persons or special interests (§ 1(d)(5))." 54 Notably, much of petitioner’s
arguments dealt with the vagueness of the key phrases "combination or series" and "pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy" which go into the very nature of the crime for which he is
charged.

Taking into consideration that the Plunder Law is a penal statute that imposes the supreme penalty of death, and that
petitioner in this case clearly has standing to question its validity inasmuch as he has been charged thereunder and that
he has been for sometime now painfully deprived of his liberty, it behooves this Court to address the challenge on the
validity of R.A. No. 7080.

Men steeped in law find

difficulty in understanding plunder.

The basic question that arises, therefore, is whether the clauses in Section 2--

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combination or series of overt or criminal acts as described in Section 1(d) hereof

and Section 1(d), which provides--

x x x by any combination or series of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

xxx

6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the
Philippines.

as qualified by Section 4 which also speaks of the "scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth" and of "a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy," are clear
enough that a person "of common intelligence" need not guess at their meaning and differ as to their application.

The above raise several difficult questions of meaning which go to the very essence of the offense, such as:

a. How many acts would constitute a "combination or series?"

b. Must the acts alleged to constitute the "combination or series" be similar in nature? Note that Section 1(d)
speaks of "similar schemes" while Section 4 speaks of "the scheme" and of "a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy."

c. Must the "combination or series" of "overt or criminal acts" involving the aggregate amount of at least P50
million be conceived as such a scheme or a "pattern of overt or criminal acts" from inception by the accused?

d. What would constitute a "pattern"? What linkage must there be between and among the acts to constitute a
"pattern"? Need there be a linkage as to the persons who conspire with one another, and a linkage as to all the
acts between and among them?

e. When Section 4 speaks of "indicative of the overall unlawful scheme or conspiracy," would this mean that the
"scheme" or "conspiracy" should have been conceived or decided upon in its entirety, and by all of the
participants?

f. When committed in connivance "with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons" or through "dummies, nominees, agents, subordinates and/or
business associates", would such fact be part of the "pattern of overt or criminal acts" and of the "overall
unlawful scheme or conspiracy" such that all of those who are alleged to have participated in the crime of
plunder must have participated in each and every act allegedly constituting the crime of plunder? And as in
conspiracy, conspired together from inception to commit the offense?

g. Within what time frame must the acts be committed so as to constitute a "combination or series"?

I respectfully disagree with the majority that "ascertainable standards and well-defined parameters" are provided in the
law55 to resolve these basic questions.

Even men steeped in the knowledge of the law are in a quandary as to what constitutes plunder. The Presiding Justice of
the Sandiganbayan, Justice Francis Garchitorena, admitted that the justices of said court "have been quarrelling with
each other in finding ways to determine what [they] understand by plunder."56 Senator Neptali Gonzales also
noted during the deliberations of Senate Bill No. 733 that the definition of plunder under the law is vague. He
bluntly declared: "I am afraid that it might be faulted for being violative of the due process clause and the right to be
informed of the nature and cause of the accusation of an accused. 57 Fr. Bernas, for his part, pointed to several
problematical portions of the law that were left unclarified. He posed the question: "How can you have a 'series' of
criminal acts if the elements that are supposed to constitute the series are not proved to be criminal?"58

The meanings of "combination" and "series"

as used in R.A. No. 7080 are not clear.

Although the law has no statutory definition of "combination" or "series", the majority is of the view that resort can be
had to the ordinary meaning of these terms. Thus, Webster's Third New International Dictionary gives the meaning of
"combination": "the result or product or product of combining: a union or aggregate made of combining one thing with
another."59

In the context of R.A. No. 7080, "combination" as suggested by the Solicitor General means that at least two of the
enumerated acts found in Section 1(d), i.e., one of any of the enumerated acts, combined with another act falling under
any other of the enumerated means may constitute the crime of plunder. With respect to the term "series," the majority

78
states that it has been understood as pertaining to "two or more overt or criminal acts falling under the same
category"60 as gleaned from the deliberations on the law in the House of Representatives and the Senate.

Further, the import of "combination" or "series" can be ascertained, the majority insists, 61 from the following
deliberations in the Bicameral Conference Committee on May 7, 1991:

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A COMBINATION OR SERIES OF
OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean
to say, if there are two or more means, we mean to say that number one and two or number one and something else are
included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be
included also?

THE CHAIRMAN (REP. GARCIA): Yeah, because we say series.

REP. ISIDRO: Series.

THE CHAIRMAN (REP. GARCIA): Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

THE CHAIRMAN: (REP. GARCIA): Yes.

REP. ISIDRO: When we say combination, it seems that-

THE CHAIRMAN (REP. GARCIA): Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.

THE CHAIRMAN: (REP. GARCIA): No, no, not twice.

REP. ISIDRO: Not twice?

THE CHAIRMAN (REP. GARCIA): Yes. Combination is not twice—but combination, two acts.

REP. ISIDRO: So in other words, that’s it. When we say combination, we mean two different acts. It can not be a
repetition of the same act.

THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

THE CHAIRMAN (REP. GARCIA): A series.

REP. ISIDRO: That’s not series. It’s a combination. Because when we say combination or series, we seem to say that two
or more, ‘di ba?

THE CHAIRMAN: (REP. GARCIA): Yes, This distinguishes it, really, from the ordinary crimes. That is why, I said, that is a
very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or
series of overt or criminal acts. So…

HON. ISIDRO: I know what you are talking about. For example, through misappropriation, conversion, misuse or
malversation of public funds who raids the public treasury, now, for example, misappropriation, if there are a series of
misappropriations?

xxx

THE CHAIRMAN (REP. GARCIA): Series. One after the other eh di…

THE CHAIRMAN (SEN TAÑADA): So that would fall under term "series"?

THE CHAIRMAN (REP. GARCIA): Series, oo.

REP. ISIDRO: Now, if it is combination, ano, two misappropriations…

THE CHAIRMAN (REP. GARCIA): It’s not… two misappropriations will not be combination. Series.

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REP. ISIDRO: So, it is not a combination?

THE CHAIRMAN (REP. GARCIA): Yes.

REP. ISIDRO: When you say "combination", two different?

THE CHAIRMAN (REP. GARCIA): Yes.

THE CHAIRMAN (SEN. TAÑADA): Two different.

REP. ISIDRO: Two different acts.

THE CHAIRMAN (REP. GARCIA): For example, ha…

REP. ISIDRO: Now a series, meaning, repetition… 62

The following deliberations in the Senate are pointed to by the majority 63 to show that the words "combination" and
"series" are given their ordinary meaning:

Senator Maceda. In line of our interpellations that sometimes "one" or maybe even "two" acts may already result in such
a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt or". To read, therefore: "or
conspiracy COMMITTED by criminal acts such as". Remove the idea of necessitating "a series". Anyway, the criminal acts
are in the plural.

Senator Tañada. That would mean a combination of two or more of the acts mentioned in this.

The President. Probably, two or more would be….

Senator Maceda. Yes, because ‘a series’ implies several or many’ two or more.

Senator Tañada. Accepted, Mr. President.

xxx

The President. If there is only one, then he has to be prosecuted under the particular crime. But when we say ‘acts of
plunder’ there should be, at least, two or more.

Senator Romulo. In other words, that is already covered by existing laws, Mr. President. 64

To my mind, resort to the dictionary meaning of the terms "combination" and "series" as well as recourse to the
deliberations of the lawmakers only serve to prove that R.A. No. 7080 failed to satisfy the strict requirements of the
Constitution on clarity and definiteness. Note that the key element to the crime of plunder is that the public officer, by
himself or in conspiracy with others, amasses, accumulates, or acquires "ill-gotten wealth" through a "combination or
series of overt or criminal acts" as described in Section 1(d) of the law. Senator Gonzales, during the deliberations in the
Senate, already raised serious concern over the lack of a statutory definition of what constitutes "combination" or
"series", consequently, expressing his fears that Section 2 of R.A. No. 7080 might be violative of due process:

Senator Gonzales. To commit the offense of plunder, as defined in this Act and while constituting a single offense, it
must consist of a series of overt or criminal acts, such as bribery, extortion, malversation of public funds, swindling,
illegal exaction, and graft or corrupt practices act and like offenses. Now, Mr. President, I think, this provision, by itself
will be vague. I am afraid that it might be faulted for being violative of the due process clause and the right to be
informed of the nature and cause of accusation of an accused. Because, what is meant by "series of overt or criminal
acts"? I mean, would 2, 3, 4 or 5 constitute a series? During the period of amendments, can we establish a minimum of
overt acts like, for example, robbery in band? The law defines what is robbery in band by the number of participants
therein. In this particular case probably, we can statutorily provide for the definition of "series" so that two, for example,
would that be already a series? Or, three, what would be the basis for such determination? 65(Emphasis supplied.)

The point raised by Senator Gonzales is crucial and well-taken. I share petitioner’s observation that when penal laws
enacted by Congress make reference to a term or concept requiring a quantitative definition, these laws are so crafted
as to specifically state the exact number or percentage necessary to constitute the elements of a crime. To cite a few:

"Band" – "Whenever more than three armed malefactors shall have acted together in the commission of an offense, it
shall be deemed to have been committed by a band." (Article 14[6], Revised Penal Code) 66

"Conspiracy" – "A conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it." (Article 8, Revised Penal Code) 67

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"Illegal Recruitment by a Syndicate" – "Illegal recruitment is deemed committed by a syndicate if carried out by a group
of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal
transaction, enterprise or scheme x x x." (Section 38, Labor Code)

"Large-scale Illegal Recruitment" – "Illegal recruitment is deemed committed in large scale if committed against three
(3) or more persons individually or as a group." (Section 38, Labor Code)

"Organized/Syndicated Crime Group" – "[M]eans a group of two or more persons collaborating, confederating or mutually
helping one another for purposes of gain in the commission of any crime." (Article 62 (1)(1a), Revised Penal Code) 68

"Swindling by a Syndicate" – "x x x if the swindling (estafa) is committed by a syndicate consisting of five or more
persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme x x x ."
(Section 1, P.D. No. 1689)69

The deliberations of the Bicameral Conference Committee and of the Senate cited by the majority, consisting mostly of
unfinished sentences, offer very little help in clarifying the nebulous concept of plunder. All that they indicate is that
Congress seemingly intended to hold liable for plunder a person who: (1) commits at least two counts of any one of the
acts mentioned in Section 1(d) of R.A. No. 7080, in which case, such person commits plunder by a series of overt
criminal acts; or (2) commits at least one count of at least two of the acts mentioned in Section 1(d), in which case, such
person commits plunder by a combination of overt criminal acts. Said discussions hardly provide a window as to the
exact nature of this crime.

A closer look at the exchange between Representatives Garcia and Isidro and Senator Tañada would imply that initially,
combination was intended to mean "two or more means," 70 i.e., "number one and two or number one and something
else x x x,"71 "two of the enumerated means not twice of one enumeration," 72 "two different acts."73Series would refer to
"a repetition of the same act."74 However, the distinction was again lost as can be gleaned from the following:

THE CHAIRMAN (REP. GARCIA) Yes. Combination is not twice – but combination, two acts.

REP. ISIDRO. So in other words, that’s it. When we say combination, we mean, two different acts. It can not be a
repetition of the same act.

THE CHAIRMAN (REP. GARCIA). That be referred to series. Yeah.

REP. ISIDRO. No, no. Supposing one act is repeated, so there are two.

THE CHAIRMAN (REP. GARCIA). A series.

REP. ISIDRO. That’s not series. It’s a combination. Because when we say combination or series, we seem to say that two
or more, ‘di ba?

THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes it really the ordinary --- That’s why I said, that’s a very good
suggestion, because if its’ only one act, it may fall under ordinary crime. But we have here a combination or series, of
overt or criminal acts" (Emphasis supplied). 75

xxx

THE CHAIRMAN (REP. GARCIA P.) Series. One after the other eh di…

THE CHAIRMAN (SEN. TAÑADA) So, that would fall under the term "series"?

THE CHAIRMAN (REP. GARCIA P) Series, oo.

REP. ISIDRO. Now, if it is combination, ano, two misappropriations…

THE CHAIRMAN (REP. GARCIA) It’s not… two misappropriations will not be combination. Series.

REP. ISIDRO. So, it is not a combination?

THE CHAIRMAN. (REP. GARCIA P.) Yes.

REP. ISIDRO. When we say "combination", two different?

THE CHAIRMAN (REP. GARCIA P.) Yes.

THE CHAIRMAN (SEN. TAÑADA) Two different.

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REP. ISIDRO. Two different acts.

THE CHAIRMAN (REP. GARCIA P.) For example, ha…

REP. ISIDRO. Now a series, meaning, repetition…

THE CHAIRMAN (SEN. TAÑADA) Yes.

REP. ISIDRO. With that…

THE CHAIRMAN (REP. GARCIA P.) Thank you.

THE CHAIRMAN (SEN. TAÑADA) So, it could be a series of any of the acts mentioned in paragraphs 1, 3, 4, 5 of Section 2
(d), or… 1 (d) rather, or a combination of any of the acts mentioned in paragraph 1 alone, or paragraph 2 alone or
paragraph 3 or paragraph 4.

THE CHAIRMAN (REP. GARCIA P.) I think combination maybe…which one? Series?

THE CHAIRMAN (SEN. TAÑADA) Series or combination.

REP. ISIDRO. Which one, combination or series or series or combination?

THE CHAIRMAN (SEN. TAÑADA) Okay. Ngayon doon sa definition, ano, Section 2, definition, doon sa portion ng… Saan
iyon? As mentioned, as described…

THE CHAIRMAN (REP. GARCIA P.) Described. I think that is…

THE CHAIRMAN (SEN. TAÑADA) … better than "mentioned". Yes.

THE CHAIRMAN (REP. GARCIA P.) Okay?

REP. ISIDRO. Very good.

THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.

THE CHAIRMAN (REP. GARCIA P.) Maraming salamat po.

The meeting was adjourned at 1:33 p.m."76 (Emphasis supplied.)

The aforequoted deliberations, especially the latter part thereof, would show a dearth of focus to render precise the
definition of the terms. Phrases were uttered but were left unfinished. The examples cited were not very definite.
Unfortunately, the deliberations were apparently adjourned without the Committee members themselves being clear on
the concept of series and combination.

Moreover, if "combination" as used in the law simply refers to the amassing, accumulation and acquisition of ill-gotten
wealth amounting to at least P50 Million through at least two of the means enumerated in Section 1(d), and "series," to
at least two counts of one of the modes under said section, the accused could be meted out the death penalty for acts
which, if taken separately, i.e., not considered as part of the combination or series, would ordinarily result in the
imposition of correctional penalties only. If such interpretation would be adopted, the Plunder law would be so
oppressive and arbitrary as to violate due process and the constitutional guarantees against cruel or inhuman
punishment.77 The penalty would be blatantly disproportionate to the offense. Petitioner’s examples illustrate this
absurdity:

a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with prision correccional in its medium
and maximum periods),

combined with -

one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal Code with prision correccional
in its medium period to prision mayor in its minimum period).

equals –

Plunder (punished by reclusion perpetua to death plus forfeiture of assets under R. A. 7080)

82
b. One act of prohibited transaction (penalized under Art. 215 of the Revised Penal Code with prision correccional in its
minimum period or a fine ranging from P200 to P1,000 or both).

combined with –

one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal Code with prision correccional
in its minimum or a fine ranging from P200 to P6,00, or both.

equals –

Plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080).

c. One act of possession of prohibited interest by a public officer (penalized with prision correccional in its minimum
period or a fine of P200 to P1,000, or both under Art. 216 of the Revised Penal Code).

combined with –

one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the Revised Penal Code with
prision correccional in its minimum period, or a fine of P200 to P1,000, or both),

equals –

plunder (punished by reclusion perpetua to death, and forfeiture of assets). 78

The argument that higher penalties may be imposed where two or more distinct criminal acts are combined and are
regarded as special complex crimes, i.e., rape with homicide, does not justify the imposition of the penalty of reclusion
perpetua to death in case plunder is committed. Taken singly, rape is punishable by reclusion perpetua;79and homicide,
by reclusion temporal.80 Hence, the increase in the penalty imposed when these two are considered together as a
special complex crime is not too far from the penalties imposed for each of the single offenses. In contrast, as shown by
the examples above, there are instances where the component crimes of plunder, if taken separately, would result in
the imposition of correctional penalties only; but when considered as forming part of a series or combination of acts
constituting plunder, could be punishable by reclusion perpetua to death. The disproportionate increase in the penalty is
certainly violative of substantive due process and constitute a cruel and inhuman punishment.

It may also be pointed out that the definition of "ill-gotten wealth" in Section 1(d) has reference to the acquisition of
property (by the accused himself or in connivance with others) "by any combination or series" of the "means" or "similar
schemes" enumerated therein, which include the following:

xxx

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other forms of interest or
participation including the promise of future employment or any business enterprise or undertakings;

5. By establishing agricultural, industrial or commercial monopolies or other combination and/or implementation of

decrees and orders intended to benefit particular persons or special interests;

xxx

The above-mentioned acts are not, by any stretch of the imagination, criminal or illegal acts. They involve the exercise
of the right to liberty and property guaranteed by Article III, Section 1 of the Constitution which provides that "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 the laws." Receiving or accepting any shares of stock is not per se objectionable. It is in pursuance of civil
liberty, which includes "the right of the citizen to be free to use his faculties in all lawful ways; x x x to earn his livelihood
by any lawful calling; to pursue any avocation, and/or that purpose, to enter into all contracts which may be proper,
necessary and essential to his carrying out these purposes to a successful conclusion. 81 Nor is there any impropriety,
immorality or illegality in establishing agricultural, industrial or commercial monopolies or other combination and/or
implementation of decrees and orders even if they are intended to benefit particular persons or special interests. The
phrases "particular persons" and "special interests" may well refer to the poor, 82the indigenous cultural
communities,83 labor,84 farmers,85 fisherfolk,86 women,87 or those connected with education, science and technology, arts,
culture and sports.88

In contrast, the monopolies and combinations described in Article 186 of the Revised Penal Code are punishable
because, as specifically defined therein, they are "on restraint of trade or commerce or to prevent by artificial means of
free competition in the market, or the object is "to alter the price" of any merchandise "by spreading false rumors," or to
manipulate market prices in restraint of trade. There are no similar elements of monopolies or combinations as
described in the Plunder Law to make the acts wrongful.

If, as interpreted by the Solicitor General, "series" means a "repetition" or pertains to "two or more" acts, and
"combination as defined in the Webster’s Third New International Dictionary is "the result or product of combining one

83
thing with another,"89 then, the commission of two or more acts falling under paragraphs (4) and (5) of Section 1(d)
would make innocent acts protected by the Constitution as criminal, and punishable by reclusion perpetua to death.

R.A. No. 7080 does not define "pattern,"

an essential element of the crime of plunder.

Granting arguendo that, as asserted by the majority, "combination" and "series" simplistically mean the commission of
two or more of the acts enumerated in Section 1(d), 90 still, this interpretation does not cure the vagueness of R.A. No.
7080. In construing the definition of "plunder," Section 2 of R.A. No. 7080 must not be read in isolation but rather, must
be interpreted in relation to the other provisions of said law. It is a basic rule of statutory construction that to ascertain
the meaning of a law, the same must be read in its entirety. 91 Section 1 taken in relation to Section 4 suggests that there
is something to plunder beyond simply the number of acts involved and that a grand scheme to amass, accumulate or
acquire ill-gotten wealth is contemplated by R.A. No. 7080. Sections 1 and 2 pertain only to the nature and quantitative
means or acts by which a public officer, by himself or in connivance with other persons, "amasses, accumulates or
acquires ill-gotten wealth." Section 4, on the other hand, requires the presence of elements other than those
enumerated in Section 2 to establish that the crime of plunder has been committed because it speaks of the necessity to
establish beyond reasonable doubt a "pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy."

Clearly, it will not suffice that the "illegal wealth" amassed is at least Fifty Million Pesos and that this was acquired by
any two or more of the acts described in Section 1(d); it is necessary that these acts constitute a "combination or series"
of acts done in furtherance of "the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth", and which
constitute "a pattern of overt or criminal acts indicative of the overall scheme or conspiracy."

That pattern is an essential element of the crime of plunder is evident from a reading of the assailed law in its entirety. It
is that which would distinguish plunder from isolated criminal acts punishable under the Revised Penal Code and other
laws, for without the existence a "pattern of overt or criminal acts indicative of the overall scheme or conspiracy" to
acquire ill-gotten wealth, a person committing several or even all of the acts enumerated in Section 1(d) cannot be
convicted for plunder, but may be convicted only for the specific crimes committed under the pertinent provisions of the
Revised Penal Code or other laws.

For this reason, I do not agree that Section 4 is merely a rule of evidence or a rule of procedure. It does not become such
simply because its caption states that it is, although its wording indicates otherwise. On the contrary, it is of substantive
character because it spells out a distinctive element of the crime which has to be established, i.e., an overall unlawful
"scheme or conspiracy" indicated by a "pattern of overt or criminal acts" or means or similar schemes "to amass,
accumulate or acquire ill-gotten wealth."

The meaning of the phrase "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy,"
however, escapes me. As in "combination" and "series," R.A. No. 7080 does not provide a definition of "pattern" as well
as "overall unlawful scheme." Reference to the legislative history of R.A. No. 7080 for guidance as to the meanings of
these concepts would be unavailing, since the records of the deliberations in Congress are silent as to what the
lawmakers mean by these terms.

Resort to the dictionary meanings of "pattern" and "scheme" is, in this case, wholly inadequate. These words are defined
as:

pattern: an arrangement or order of things or activity. 92

scheme: design; project; plot.93

At most, what the use of these terms signifies is that while multiplicity of the acts (at least two or more) is necessary,
this is not sufficient to constitute plunder. As stated earlier, without the element of "pattern" indicative of an "overall
unlawful scheme," the acts merely constitute isolated or disconnected criminal offenses punishable by the Revised Penal
Code or other special laws.

The commission of two or more of the acts falling under Section 1(d) is no guarantee that they fall into a "pattern" or
"any arrangement or order." It is not the number of acts but the relationship that they bear to each other or to some
external organizing principle that renders them "ordered" or "arranged":

A pattern is an arrangement or order of things, or activity, and the mere fact that there are a number of predicates is no
guarantee that they fall into an arrangement or order. It is not the number of predicates but the relationship that they
bear to each other or to some external organizing principle that renders them ‘ordered’ or ‘arranged.’  94

In any event, it is hardly possible that two predicate acts can form a pattern:

The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common parlance, two of
anything will not generally form a ‘pattern.’95

In H. J. Inc. v. Northwestern Bell Telephone Co. et al. 96 (hereinafter referred to as Northwestern), the U.S. Court reiterated
the foregoing doctrine:

84
xxx Nor can we agree with those courts that have suggested that a pattern is established merely by proving two
predicate acts.97

Respondents’ metaphorical illustration of "pattern" as a wheel with spokes (the overt or criminal acts of the accused)
meeting at a common center (the acquisition of ill-gotten wealth) and with a rim (the overall unlawful scheme or
conspiracy) of the wheel enclosing the spokes, is off tangent. Their position that two spokes suffice to make a wheel,
even without regard to the relationship the spokes bear to each other clearly demonstrates the absurdity of their view,
for how can a wheel with only two spokes which are disjointed function properly?

That "pattern" is an amorphous concept even in U.S. jurisprudence where the term is reasonably defined is precisely the
point of the incisive concurring opinion of Justice Antonin Scalia in Northwestern where he invited a constitutional
challenge to the RICO law on "void-for-vagueness" ground.98 The RICO law is a federal statute in the United States that
provides for both civil and criminal penalties for violation therefor. It incorporates by reference twenty-four separate
federal crimes and eight types of state felonies. 99 One of the key elements of a RICO violation is that the offender is
engaged in a "pattern of racketeering activity." 100 The RICO law defines the phrase "pattern of racketeering activity" as
requiring "at least two acts of racketeering activity, one of which occurred after the effective date of 18 USCS § 1961,
and within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering
activity."101 Incidentally, the Solicitor General claims that R.A. No. 7080 is an entirely different law from the RICO law.
The deliberations in Congress reveal otherwise. As observed by Rep. Pablo Garcia, Chairman of the House of
Representatives Committee on Justice, R.A. No. 7080 was patterned after the RICO law. 102

In Northwestern, conceding that "[the U.S. Congress] has done nothing . . . further to illuminate RICO’s key requirement
of a pattern of racketeering," the U.S. Supreme Court, through Justice William J. Brennan, Jr., undertook the task of
developing a meaningful concept of "pattern" within the existing statutory framework. 103Relying heavily on legislative
history, the US Supreme Court in that case construed "pattern" as requiring "continuity plus relationship." 104 The US
Supreme Court formulated the "relationship requirement" in this wise: "Criminal conduct forms a pattern if it embraces
criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or
otherwise are interrelated by distinguishing characteristics and are not isolated events." 105 Continuity is clarified as "both
a closed and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its
nature projects into the future with a threat of repetition." 106

In his separate concurring opinion, Justice Scalia rejected the majority’s formulation. The "talismanic phrase" of
"continuity plus relationship" is, as put by Justice Scalia, about as helpful as advising the courts that "life is a fountain."
He writes:

x x x Thus, when §1961(5) says that a pattern "requires at least two acts of racketeering activity" it is describing what is
needful but not sufficient. (If that were not the case, the concept of "pattern" would have been unnecessary, and the
statute could simply have attached liability to "multiple acts of racketeering activity"). But what that something more is,
is beyond me. As I have suggested, it is also beyond the Court. Today’s opinion has added nothing to improve our prior
guidance, which has created a kaleidoscope of Circuit positions, except to clarify that RICO may in addition be violated
when there is a "threat of continuity." It seems to me this increases rather than removes the vagueness. There is no
reason to believe that the Court of Appeals will be any more unified in the future, than they have in the past, regarding
the content of this law.

That situation is bad enough with respect to any statute, but it is intolerable with respect to RICO. For it is not only true,
as Justice Marshall commented in Sedima, S.P.R.L. vs. Imrex Co., 473 U.S. 479 x x x, that our interpretation of RICO has
"quite simply revolutionize[d] private litigation" and "validate[d] the federalization of broad areas of state common law
of frauds," x x x so that clarity and predictability in RICO’s civil applications are particularly important; but it is also true
that RICO, since it has criminal applications as well, must, even in its civil applications, possess the degree of certainty
required for criminal laws x x x. No constitutional challenge to this law has been raised in the present case, and so that
issue is not before us. That the highest court in the land has been unable to derive from this statute anything more than
today’s meager guidance bodes ill for the day when that challenge is presented. 107

It bears noting that in Northwestern the constitutionality of the RICO law was not challenged. 108 After Northwestern,the
U.S. Supreme Court has so far declined the opportunity to hear cases in which the void-for-vagueness challenge to the
pattern requirement was raised.109

Admittedly, at the district courts level, the state statutes (referred to as Little RICOS) 110 have so far successfully survived
constitutional challenge on void-for-vagueness ground. However, it must be underscored that, unlike R.A. No. 7080,
these state anti-racketeering laws have invariably provided for a reasonably clear, comprehensive and
understandable definition of "pattern." 111 For instance, in one state, the pattern requirement specifies that the
related predicate acts must have, among others, the same or similar purpose, result, principal, victims or methods of
commission and must be connected with "organized crime.112 In four others, their pattern requirement provides that two
or more predicate acts should be related to the affairs of the enterprise, are not isolated, are not closely related to each
other and connected in point of time and place, and if they are too closely related, they will be treated as a single
act.113 In two other states, pattern requirements provide that if the acts are not related to a common scheme, plan or
purpose, a pattern may still exist if the participants have the mental capacity required for the predicate acts and are
associated with the criminal enterprise.114

All the foregoing state statutes require that the predicate acts be related and that the acts occur within a
specified time frame.

Clearly, "pattern" has been statutorily defined and interpreted in countless ways by circuit courts in the United States.
Their divergent conclusions have functioned effectively to create variant criminal offenses. 115 This confusion has come
85
about notwithstanding that almost all these state laws have respectively statutorily defined "pattern". In sharp
contrast, R.A. No. 7080, as earlier pointed out, lacks such crucial definition. As to what constitutes pattern
within the meaning of R.A. No. 7080 is left to the ad hoc interpretation of prosecutors and judges. Neither the text of
R.A. No. 7080 nor legislative history afford any guidance as to what factors may be considered in order to prove beyond
reasonable doubt "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy."

Be that as it may, it is glaringly fallacious to argue that "series" simply means a "repetition" or "pertaining to two or
more" and "combination" is the "result or product or product of combining." Whether two or more or at least three acts
are involved, the majority would interpret the phrase "combinations' or "series" only in terms of number of acts
committed. They entirely overlook or ignore Section 4 which requires "a pattern of overt of criminal acts indicative of
the overall unlawful scheme or conspiracy" to convict.

If the elements of the offense are as what the majority has suggested, the crime of plunder could have been defined in
the following manner:

Where a public official, by himself or in conspiracy with others, amasses or acquires money or property by committing
two or more acts in violation of Section 3 of the Anti-Graft and Corrupt Practices Act (R.A. 3019), or Articles 210, 211,
212, 213, 214, 215, 216 and 217 of the Revised Penal Code, he shall be guilty of the crime of plunder and shall be
punished by reclusion perpetua to death.

The above would be a straightforward and objective definition of the crime of plunder. However, this would render
meaningless the core phrases "a combination or series of" "overt or criminal acts indicative of the overall unlawful
scheme or conspiracy," or the phrase "any combination or series of the following means or similar schemes" or "a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy."

But that obviously is not the definition of the crime of plunder under R.A. 7080. There is something more. A careful
reading of the law would unavoidably compel a conclusion that there should be a connecting link among the "means or
schemes" comprising a "series or combination" for the purpose of acquiring or amassing "ill-gotten wealth." The bond or
link is an "overall unlawful scheme or conspiracy mentioned in Section 4. The law contemplates a combination or series
of criminal acts in plunder done by the accused "in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth." It does not postulate acts committed randomly, separately or independently or
sporadically. Otherwise stated, if the legislature intended to define plunder as the acquisition of ill-gotten wealth in the
manner espoused by the majority, the use in R.A. 7080 of such words and phrases as "combination" and "series of overt
or criminal acts" xxx "in furtherance of the scheme or conspiracy" is absolutely pointless and meaningless.

R.A. No. 7080 makes it possible for a person

conspiring with the accused in committing
one of the acts constituting the charge
of plunder to be convicted for the same crime.

Section 2 of R.A. No. 7080 states that "[a]ny person who participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties,
the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court." Both parties share the view that the law as it is worded makes it possible
for a person who participates in the commission of only one of the component crimes constituting plunder to be liable as
co-conspirator for plunder, not merely the component crime in which he participated. 116 While petitioner concedes that it
is easy to ascertain the penalty for an accomplice or accessory under R.A. No. 7080, such is not the case with respect to
a co-principal of the accused.117 In other words, a person who conspires with the accused in the commission of only one
of the component crimes may be prosecuted as co-principal for the component crime, or as co-principal for the crime of
plunder, depending on the interpretation of the prosecutor. The unfettered discretion effectively bestowed on law
enforcers by the aforequoted clause in determining the liability of the participants in the commission of one or more of
the component crimes of a charge for plunder undeniably poses the danger of arbitrary enforcement of the
law.118

R.A. No. 7080 does not clearly state

the prescriptive period of the crime of plunder.

Section 6 of R.A. No. 7080 provides that the crime punishable under said Act shall prescribe in twenty (20) years.
Considering that the law was designed to cover a "combination or series of overt or criminal acts," or "a pattern of overt
or criminal acts," from what time shall the period of prescription be reckoned? From the first, second, third or last act of
the series or pattern? What shall be the time gap between two succeeding acts? If the last act of a series or combination
was committed twenty or more years after the next preceding one, would not the crime have prescribed, thereby
resulting in the total extinction of criminal liability under Article 89(b) of the Revised Penal Code? In antithesis, the RICO
law affords more clarity and definiteness in describing "pattern of racketeering activity" as "at least two acts of
racketeering activity, one of which occurred within ten years (excluding any period of imprisonment) after the
commission of a prior act of racketeering activity." 119119 119 The U.S. state statutes similarly provide specific time frames
within which racketeering acts are committed.

The Solicitor General enjoins the Court to rectify the deficiencies in the law by judicial construction. However, it certainly
would not be feasible for the Court to interpret each and every ambiguous provision without falling into the trap of
judicial legislation. A statute should be construed to avoid constitutional question only when an alternative
interpretation is possible from its language.120 Borrowing from the opinion of the court121 in Northwestern,122 the law
"may be a poorly drafted statute; but rewriting it is a job for Congress, if it so inclined, and not for this Court." But
where the law as the one in question is void on its face for its patent ambiguity in that it lacks comprehensible standards
86
that men of common intelligence must necessarily guess at its meaning and differ as to its application, the Court cannot
breathe life to it through the guise of construction.

R.A. No. 7080 effectively eliminates mens rea

or criminal intent as an element of the crime of plunder.

Section 4 provides that for the purpose of establishing the crime of plunder, "it shall not be necessary to prove each and
every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish beyond reasonable a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy."

The majority would interpret this section to mean that the prosecution has the burden of "showing a combination or
series resulting in the crime of plunder." And, once the minimum requirements for a combination or a series of acts are
met, there is no necessity for the prosecution to prove each and every other act done by the accused in furtherance of
the scheme or conspiracy to amass, accumulate, or acquire ill-gotten wealth. 123

By its language, Section 4 eliminates proof of each and every component criminal act of plunder by the accused and
limits itself to establishing just the pattern of overt or criminal acts indicative of unlawful scheme or conspiracy. The law,
in effect, penalizes the accused on the basis of a proven scheme or conspiracy to commit plunder without the necessity
of establishing beyond reasonable doubt each and every criminal act done by the accused in the crime of plunder. To
quote Fr. Bernas again: "How can you have a ‘series’ of criminal acts if the elements that are supposed to constitute the
series are not proved to be criminal?" 124

Moreover, by doing away with proof beyond reasonable doubt of each and every criminal act done by the accused in the
furtherance of the scheme or conspiracy to acquire ill-gotten wealth, it being sufficient just to prove a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy, the Plunder Law effectively eliminated the mens
rea or criminal intent as an element of the crime. Because of this, it is easier to convict for plunder and sentence the
accused to death than to convict him for each of the component crimes otherwise punishable under the Revised Penal
Code and other laws which are bailable offenses. The resultant absurdity strikes at the very heart if the constitutional
guarantees of due process and equal protection.

Plunder is a malum in se.

The acts enumerated in Section 1(d) are mostly defined and penalized by the Revised Penal Code, e.g. malversation,
estafa, bribery and other crimes committed by public officers. As such, they are by nature mala in secrimes. Since intent
is an essential element of these crimes, then, with more reason that criminal intent be established in plunder which,
under R.A. No. 7659, is one of the heinous crimes 125 as pronounced in one of its whereas clauses.126

The fact that the acts enumerated in Section 1(d) of R.A. 7080 were made criminal by special law does not necessarily
make the same mala prohibita where criminal intent is not essential, although the term refers generally to acts made
criminal by special laws. For there is a marked difference between the two. According to a well-known author on criminal
law:

There is a distinction between crimes which are mala in se, or wrongful from their nature, such as theft, rape, homicide,
etc., and those that are mala prohibita, or wrong merely because prohibited by statute, such as illegal possession of
firearms.

Crimes mala in se are those so serious in their effects on society as to call for almost unanimous condemnation of its
members; while crimes mala prohibita are violations of mere rules of convenience designed to secure a more orderly
regulation of the affairs of society. (Bouvier’s Law Dictionary, Rawle’s 3rd Revision)

(1) In acts mala in se, the intent governs; but in those mala prohibit the only inquiry is, has the law been violated?
(People vs. Kibler, 106 N.Y., 321, cited in the case of U.S. vs. Go Chico, 14 Phil. 132)

Criminal intent is not necessary where the acts are prohibited for reasons of public policy, as in illegal possession of
firearms. (People vs. Conosa, C.A., 45 O.G. 3953)

(2) The term mala in se refers generally to felonies defined and penalized by the Revised Penal Code. When the acts are
inherently immoral, they are mala in se, even if punished by special laws. On the other hand, there are crimes in the
Revised Penal Code which were originally defined and penalized by special laws. Among them are possession and use of
opium, malversation, brigandage, and libel.127

The component acts constituting plunder, a heinous crime, being inherently wrongful and immoral, are patently mala in
se, even if punished by a special law and accordingly, criminal intent must clearly be established together with the other
elements of the crime; otherwise, no crime is committed. By eliminating mens rea, R.A. 7080 does not require the
prosecution to prove beyond reasonable doubt the component acts constituting plunder and imposes a lesser burden of
proof on the prosecution, thus paving the way for the imposition of the penalty of reclusion perpetua to death on the
accused, in plain violation of the due process and equal protection clauses of the Constitution. Evidently, the authority of
the legislature to omit the element of scienter in the proof of a crime refers to regulatory measures in the exercise of
police power, where the emphasis of the law is to secure a more orderly regulations of the offense of society, rather than
the punishment of the crimes. So that in mala prohibita prosecutions, the element of criminal intent is a requirement for
conviction and must be provided in the special law penalizing what are traditionally mala in se crimes. As correctly
87
pointed out by petitioner,128 citing U.S. Supreme Court decisions, the Smith Act was ruled to require "intent" to
advocate129 and held to require knowledge of illegal advocacy. 130 And in another case,131 and ordinance making illegal
the possession of obscene books was declared unconstitutional for lack of scienter requirement.

Mens rea is a substantive due process requirement under the Constitution, and this is a limitation on police power.
Additionally, lack of mens rea or a clarifying scienter requirement aggravates the vagueness of a statute.

In Morisette v. U.S.132 the U.S. Supreme Court underscored the stultifying effect of eliminating mens rea, thus:

The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice.
The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s party
to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to
circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual
should not be extended to common law crimes on judicial initiative.

In the same breath, Justice Florenz Regalado expreses serious doubts as to the authority of the legislature to
complex mala in se crimes with mala prohibita, saying:

x x x although there has been a tendency to penalize crimes under special laws with penalties "borrowed" from the
Code, there is still the question of legislative authority to consolidate crimes punished under different statutes. Worse,
where one is punished under the Code and the other by the special law, both of these contingencies had not been
contemplated when the concept of a delito complejo was engrafted into the Code.133

Petitioner is not estopped from questioning

the constitutionality of R.A. No. 7080.

The case at bar has been subject to controversy principally due to the personalities involved herein. The fact that one of
petitioner’s counsels134 was a co-sponsor of the Plunder Law135 and petitioner himself voted for its passage when he was
still a Senator would not in any put him in estoppel to question its constitutionality. The rule on estoppel applies to
questions of fact, not of law.136 Moreover, estoppel should be resorted to only as a means of preventing injustice. 137 To
hold that petitioner is estopped from questioning the validity of R.A. No. 7080 because he had earlier voted for its
passage would result in injustice not only to him, but to all others who may be held liable under this statute. In People
vs. Vera,138 citing the U.S. case of Attorney General v. Perkins, the Court held:

x x x The idea seems to be that the people are estopped from questioning the validity of a law enacted by their
representatives; that to an accusation by the people of Michigan of usurpation upon their government, a statute enacted
by the people of Michigan is an adequate statute relied on in justification is unconstitutional, it is a statute only in form,
and lacks the force of law, and is of no more saving effect to justify action under it it had never been enacted. the
constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow. x x x 139

The Court should not sanction the use of an equitable remedy to defeat the ends of justice by permitting a person to be
deprived of his life and liberty under an invalid law.

Undoubtedly, the reason behind the enactment of R.A. 7080 is commendable. It was a response to the felt need at the
time that existing laws were inadequate to penalize the nature and magnitude of corruption that characterized a
"previous regime."140 However, where the law, such as R.A. 7080, is so indefinite that the line between innocent and
condemned conduct becomes a matter of guesswork, the indefiniteness runs afoul of due process concepts which
require that persons be given full notice of what to avoid, and that the discretion of law enforcement officials, with the
attendant dangers of arbitrary and discriminatory enforcement, be limited by explicit legislative standards. 141 It
obfuscates the mind to ponder that such an ambiguous law as R.A. No. 7080 would put on the balance the life and
liberty of the accused against whom all the resources of the State are arrayed. It could be used as a tool against political
enemies and a weapon of hate and revenge by whoever wields the levers of power.

I submit that the charge against petitioner in the Amended Information in Criminal Case No. 26558 does not constitute
"plunder" under R.A. No. 7080, as amended by R.A. No. 7659. If at all, the acts charged may constitute offenses
punishable under the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) or the Revised Penal Code. Hence, the
information charging petitioner with plunder must be quashed. Such quashal, however, should be without prejudice to
the filing of new informations for acts under R.A. No. 3019, of the Revised Penal Code and other laws. Double jeopardy
would not bar the filing of the same because the dismissal of the case is made with the express consent of the
petitioner-accused.142

In view of the foregoing, I vote to GRANT the petition.

c. DAVID VS ARROYO (GR NO. 171396, MAY 03, 2006)

G.R. No. 171396             May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ
BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C.

88
BOLASTIG, Petitioners, 
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY
EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO
SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO,
CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 171409             May 3, 2006

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners, 

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C.
LOMIBAO, Respondents.

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

G.R. No. 171485             May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J.
AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB.
CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL,
IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners, 
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO,
SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents.

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

G.R. No. 171483             May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND SECRETARY GENERAL
JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners, 
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE EXECUTIVE SECRETARY,
EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE
PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.

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

G.R. No. 171400             May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, 

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO, Respondents.

G.R. No. 171489             May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A.
RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA,
ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners, 
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP
CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents.

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

G.R. No. 171424             May 3, 2006

LOREN B. LEGARDA, Petitioner, 
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO
LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO

89
SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); AND
EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary. 1 Superior strength – the
use of force – cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases involving liberty,
the scales of justice should weigh heavily against government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak." Laws and actions that restrict fundamental rights come to the
courts "with a heavy presumption against their constitutional validity." 2

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No.
1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to defend and
preserve democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free
people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which,
liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo
issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of
the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine
Constitution which states that: "The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to
prevent or suppress. . .rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon
my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of
National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of
the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military
adventurists – the historical enemies of the democratic Philippine State – who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted Government
elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;

WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance including hindering the
growth of the economy and sabotaging the people’s confidence in government and their faith in the future
of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening
to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic
institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear
and present danger to the safety and the integrity of the Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

90
WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the
extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State – and who are now in a tactical alliance and engaged in a concerted
and systematic conspiracy, over a broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the
growth of the economy and sabotaging the people’s confidence in the government and their faith in the future of this
country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify
their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions
and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear
and present danger to the safety and the integrity of the Philippine State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as
President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to
Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the
Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and
PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions
had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017
dated February 24, 2006, was issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of
Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed
to maintain law and order throughout the Philippines, prevent and suppress all form of lawless violence as well as any
act of rebellion and to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the
powers vested in me by law, hereby declare that the state of national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind
the executive issuances was the conspiracy among some military officers, leftist insurgents of the New People’s Army
(NPA), and some members of the political opposition in a plot to unseat or assassinate President Arroyo. 4 They
considered the aim to oust or assassinate the President and take-over the reigns of government as a clear and present
danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP
1017 and G.O. No. 5. Significantly, there was no refutation from petitioners’ counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in
determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP
1017 was without factual bases. While he explained that it is not respondents’ task to state the facts behind the
questioned Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio
Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort
Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They called

91
upon the people to "show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by
going to the streets in protest, but also by wearing red bands on our left arms." 5

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed plans for
bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President Arroyo herself. 6 Upon the advice of her
security, President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the celebration,
a bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his
possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the
National People’s Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive
documents.7 Prior to his arrest, Lt. San Juan announced through DZRH that the "Magdalo’s D-Day would be on February
24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force
were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to "disavow" any
defection. The latter promptly obeyed and issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s brother, businessmen
and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME
Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his group’s plans if
President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Army’s elite Scout Ranger. Lim said "it was all systems go for the planned movement against
Arroyo."8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the
Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and
armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there
was no way they could possibly stop the soldiers because they too, were breaking the chain of command to join the
forces foist to unseat the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the
chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine
Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police
establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal
declared: "The Communist Party and revolutionary movement and the entire people look forward to the possibility in the
coming year of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to weaken and
unable to rule that it will not take much longer to end it."9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao,
publicly announced: "Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic
difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-insurgency operations
in the field." He claimed that with the forces of the national democratic movement, the anti-Arroyo conservative political
parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that the President’s ouster
is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was
also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost
in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines
ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass
protests.10

By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess
the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their
men and ensure that the chain of command remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President suspended classes in all levels in the entire National
Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th
anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local
governments. Justice Secretary Raul Gonzales stated that political rallies, which to the President’s mind were organized
for purposes of destabilization, are cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless
arrests and take-over of facilities, including media, can already be implemented."11

Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters
(members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were
already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter
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the massed participants. The same police action was used against the protesters marching forward to Cubao, Quezon
City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA
celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City. 12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a
professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas,
president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group
(CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team
confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper; while policemen from
the Manila Police District were stationed outside the building. 13

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another
pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong presence,’ to tell media
outlets not to connive or do anything that would help the rebels in bringing down this government." The PNP warned
that it would take over any media organization that would not follow "standards set by the government during the state
of national emergency." Director General Lomibao stated that "if they do not follow the standards – and the standards
are - if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No.
5 and Proc. No. 1017 – we will recommend a ‘takeover.’" National Telecommunications’ Commissioner Ronald Solis
urged television and radio networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the events surrounding the coup
attempt foiled by the government. He warned that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage when the national security is threatened. 14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and
Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his
arrest dated 1985. Beltran’s lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed
during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted
because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the
police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the
Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan

Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador
was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of
Representatives where the "Batasan 5" decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et al.,
are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this
Court against the above-named respondents. Three (3) of these petitions impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the
emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional requirements for the imposition of
martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDG’s act of
raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They also claimed that the term
"emergency" refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely no
emergency" that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other
members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño,
Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers";
"violation of freedom of expression" and "a declaration of martial law." They alleged that President Arroyo "gravely
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abused her discretion in calling out the armed forces without clear and verifiable factual basis of the possibility of
lawless violence and a showing that there is necessity to do so."

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are
unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their
issuance was without factual basis; and (3) they violate freedom of expression and the right of the people to peaceably
assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are
unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c)Section
2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and unlawful exercise
by the President of her Martial Law powers." And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that "it amounts to an exercise by the President of emergency powers without congressional
approval." In addition, petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are "unconstitutional
for being violative of the freedom of expression, including its cognate rights such as freedom of the press and the right
to access to information on matters of public concern, all guaranteed under Article III, Section 4 of the 1987
Constitution." In this regard, she stated that these issuances prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.

In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed for
being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et
al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo
as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the people’s right
to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which
may be summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et

al.), 171489(Cadiz et al.), and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial review enunciated
in Marbury v. Madison.21 This concept rests on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It
confers limited powers on the national government. x x x If the government consciously or unconsciously
oversteps these limitations there must be some authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as expressed
in the Constitution. This power the courts exercise. This is the beginning and the end of the theory of
judicial review.22

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But the power of judicial review does not repose upon the courts a "self-starting capacity." 23 Courts may exercise such
power only when the following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of constitutionality; third, the constitutional question must be
raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the
determination of the case itself. 24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution.
It is "definite and concrete, touching the legal relations of parties having adverse legal interest;" a real and substantial
controversy admitting of specific relief. 25 The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered "moot and academic" by President Arroyo’s issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, 26so
that a declaration thereon would be of no practical use or value. 27 Generally, courts decline jurisdiction over such
case28 or dismiss it on ground of mootness.29

The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot and academic.
During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts
in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal
acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that "an
unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in
legal contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the
Constitution;31second, the exceptional character of the situation and the paramount public interest is
involved;32 third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the
bar, and the public;33and fourth, the case is capable of repetition yet evading review. 34

All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the instant petitions.
Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the
issues being raised affect the public’s interest, involving as they do the people’s basic rights to freedom of expression, of
assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional
precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given by constitutional guarantees. 35 And lastly,
respondents’ contested actions are capable of repetition. Certainly, the petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganiban’s
Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take into account the Chief Justice’s very
statement that an otherwise "moot" case may still be decided "provided the party raising it in a proper case has been
and/or continues to be prejudiced or damaged as a direct result of its issuance." The present case falls right within this
exception to the mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than
passing discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question." 37 In private suits, standing is
governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
amended. It provides that "every action must be prosecuted or defended in the name of the real party in
interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s standing is
based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is
affected no differently from any other person. He could be suing as a "stranger," or in the category of a "citizen," or
‘taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he
has to make out a sufficient interest in the vindication of the public order and the securing of relief as a "citizen" or
"taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was
first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s suit is in a different category
from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court
in People ex rel Case v. Collins:40 "In matter of mere public right, however…the people are the real parties…It
is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied." With respect to taxpayer’s suits, Terr v.

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Jordan41 held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy or act with which he
disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v.
Ullman.43 The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct injury as a result of that action,
and it is not sufficient that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the person who impugns
the validity of a statute must have "a personal and substantial interest in the case such that he has sustained,
or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate,45 Manila Race Horse Trainers’ Association v. De la Fuente,46 Pascual v. Secretary of Public
Works47 and Anti-Chinese League of the Philippines v. Felix. 48

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the
exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where the
"transcendental importance" of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,50 this Court resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical statement that petitioner therein had no personality to file
the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.51

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been
allowed to sue under the principle of "transcendental importance." Pertinent are the following cases:

(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the constitutional
right to information and the equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the transcendental
importance of the issues involved, the Court may relax the standing requirements and allow the
suit to prosper despite the lack of direct injury to the parties seeking judicial review" of the Visiting
Forces Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their capacity as
taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress’ taxing or spending
powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,55that in cases of transcendental
importance, the cases must be settled promptly and definitely and standing requirements may be
relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance
which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s organization does not give it
the requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any issue
of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor
can it sue as a concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court reiterated the "direct
injury" test with respect to concerned citizens’ cases involving constitutional issues. It held that "there must be a
showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official act."

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In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real
party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of Congress have
standing to sue, as they claim that the President’s declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with the LDP
in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds
true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct injury"
resulting from "illegal arrest" and "unlawful search" committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised
the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial
Law are used. Moreover, it is in the interest of justice that those affected by PP 1017 can be represented by their
Congressmen in bringing to the attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran Ng Mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming Corporation,63 and Tañada v. Tuvera,64 that
when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution
of the laws.

In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be
deemed sufficient to give it legal standing. Organizations may be granted standing to assert the rights of their
members.65 We take judicial notice of the announcement by the Office of the President banning all rallies and canceling
all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP)
have no legal standing, having failed to allege any direct or potential injury which the IBP as an institution or its
members may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the
Philippines v. Zamora,66 the Court held that the mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry. However, in view of the transcendental importance of
the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no
allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no consequence. She can
no longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and
G.O. No. 5. Her claim that she is a media personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her submission that she has pending
electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that
PP 1017 will affect the proceedings or result of her case. But considering once more the transcendental importance of
the issue involved, this Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper
exercise of judicial power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of
this Court on this very critical matter. The petitions thus call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017 cases."1avvphil.net

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during
his tenure of office or actual incumbency, 67 may not be sued in any civil or criminal case, and there is no need to provide
for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can
be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions.
Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone.
Like any other official, he remains accountable to the people68 but he may be removed from office only in the mode
provided by law and that is by impeachment. 69

B. SUBSTANTIVE

I. Review of Factual Bases

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 Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President Arroyo to issue such
Proclamation.

The issue of whether the Court may review the factual bases of the President’s exercise of his Commander-in-Chief
power has reached its distilled point - from the indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to
the volatile era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts
across the line defining "political questions," particularly those questions "in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the government." 75 Barcelon and Montenegro were in
unison in declaring that the authority to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the courts. Lansang took the opposite view. There, the
members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of
factual bases in order to determine their constitutional sufficiency. From the principle of separation of powers, it
shifted the focus to the system of checks and balances, "under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department, which in this respect, is, in
turn, constitutionally supreme."76 In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.77 There,
the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a political or
justiciable question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need
to re-examine the latter case, ratiocinating that "in times of war or national emergency, the President must be
given absolute control for the very life of the nation and the government is in great peril. The President, it
intoned, is answerable only to his conscience, the People, and God."79

The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at bar -- echoed a
principle similar to Lansang. While the Court considered the President’s "calling-out" power as a discretionary power
solely vested in his wisdom, it stressed that "this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion."This ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of 1987
Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the
political departments. Under the new definition of judicial power, the courts are authorized not only "to settle actual
controversies involving rights which are legally demandable and enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." The latter part of the authority represents a broadening of judicial
power to enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political
departments of the government.81 It speaks of judicial prerogative not only in terms of power but also of duty.82

As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that "judicial inquiry
can go no further than to satisfy the Court not that the President’s decision is correct," but that "the President did not
act arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness. 83 In Integrated Bar of the Philippines,
this Court further ruled that "it is incumbent upon the petitioner to show that the President’s decision is
totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion, then "this Court cannot
undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is totally bereft of
factual basis. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of
the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the
escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in
the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the
military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is
convinced that the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do
nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of
such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists 
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at the
various political theories relating to this subject provides an adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with
the problem of emergency. In times of danger to the nation, positive law enacted by the legislature might be inadequate
or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations, the Crown
retained a prerogative "power to act according to discretion for the public good, without the proscription of
the law and sometimes even against it."84 But Locke recognized that this moral restraint might not suffice to avoid
abuse of prerogative powers. Who shall judge the need for resorting to the prerogative and how may its abuse
be avoided? Here, Locke readily admitted defeat, suggesting that "the people have no other remedy in this, as in
all other cases where they have no judge on earth, but to appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time
of emergency. According to him:

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The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain cases,
render them disastrous and make them bring about, at a time of crisis, the ruin of the State…

It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their operation.
Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to
nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority. In such a
case, there is no doubt about the general will, and it clear that the people’s first intention is that the State shall not
perish.86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it. For him, it
would more likely be cheapened by "indiscreet use." He was unwilling to rely upon an "appeal to heaven." Instead, he
relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship. 87

John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning, in cases of
extreme necessity, the assumption of absolute power in the form of a temporary dictatorship."88

Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited government, furnished
an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic
political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional measures; for although
they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established for good objects,
they will in a little while be disregarded under that pretext but for evil purposes. Thus, no republic will ever be perfect if
she has not by law provided for everything, having a remedy for every emergency and fixed rules for applying it. 89

Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a regularized system of
standby emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted
forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its application in
time of emergency, with effective constitutional restraints. 90

Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional
democracies, have employed the doctrine of constitutional dictatorship. 91 Frederick M. Watkins saw "no reason why
absolutism should not be used as a means for the defense of liberal institutions," provided it "serves to
protect established institutions from the danger of permanent injury in a period of temporary emergency
and is followed by a prompt return to the previous forms of political life."92 He recognized the two (2) key
elements of the problem of emergency governance, as well as all constitutional governance: increasing
administrative powers of the executive, while at the same time "imposing limitation upon that
power."93Watkins placed his real faith in a scheme of constitutional dictatorship. These are the conditions of success of
such a dictatorship: "The period of dictatorship must be relatively short…Dictatorship should always be
strictly legitimate in character…Final authority to determine the need for dictatorship in any given case
must never rest with the dictator himself…"94 and the objective of such an emergency dictatorship should be
"strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem of concentrating power – in a
government where power has consciously been divided – to cope with… situations of unprecedented magnitude and
gravity. There must be a broad grant of powers, subject to equally strong limitations as to who shall exercise such
powers, when, for how long, and to what end."96 Friedrich, too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: "The emergency executive must be appointed by constitutional means –
i.e., he must be legitimate; he should not enjoy power to determine the existence of an emergency;
emergency powers should be exercised under a strict time limitation; and last, the objective of emergency
action must be the defense of the constitutional order."97

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, Weimar,
Germany and the United States, reverted to a description of a scheme of "constitutional dictatorship" as solution to the
vexing problems presented by emergency.98 Like Watkins and Friedrich, he stated a priori the conditions of success of
the "constitutional dictatorship," thus:

1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the State and its constitutional order…

2) …the decision to institute a constitutional dictatorship should never be in the hands of the man or men who
will constitute the dictator…

3) No government should initiate a constitutional dictatorship without making specific provisions for its
termination…

4) …all uses of emergency powers and all readjustments in the organization of the government should be
effected in pursuit of constitutional or legal requirements…

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 5) … no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more than
is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent in
character or effect…

7) The dictatorship should be carried on by persons representative of every part of the citizenry interested in
the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be in
the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was
instituted…

11) …the termination of the crisis must be followed by a complete return as possible to the political and
governmental conditions existing prior to the initiation of the constitutional dictatorship… 99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He
would secure to Congress final responsibility for declaring the existence or termination of an emergency, and he places
great faith in the effectiveness of congressional investigating committees. 100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that,
"the suggestion that democracies surrender the control of government to an authoritarian ruler in time of
grave danger to the nation is not based upon sound constitutional theory." To appraise emergency power in
terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all
chief executives administering emergency powers. However used, "constitutional dictatorship" cannot be divorced from
the implication of suspension of the processes of constitutionalism. Thus, they favored instead the "concept of
constitutionalism" articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which is
consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any means
necessarily exclude some indeterminate limitations upon the substantive powers of government, full emphasis is placed
upon procedural limitations, and political responsibility. McIlwain clearly recognized the need to repose adequate
power in government. And in discussing the meaning of constitutionalism, he insisted that the historical and proper
test of constitutionalism was the existence of adequate processes for keeping government responsible. He
refused to equate constitutionalism with the enfeebling of government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power. He found that the really effective checks on despotism have
consisted not in the weakening of government but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of constitutionalism for which all lovers of
liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of
government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists –- from Lock’s "theory of
prerogative," to Watkins’ doctrine of "constitutional dictatorship" and, eventually, to McIlwain’s "principle of
constitutionalism" --- ultimately aim to solve one real problem in emergency governance, i.e., that of allotting
increasing areas of discretionary power to the Chief Executive, while insuring that such powers will be
exercised with a sense of political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986
Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of
Justice Jackson’s "balanced power structure."102 Executive, legislative, and judicial powers are dispersed to the President,
the Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role to serve as limitation or check upon
the other. This system does not weaken the President, it just limits his power, using the language of McIlwain. In
other words, in times of emergency, our Constitution reasonably demands that we repose a certain amount of faith in
the basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its enforcement
encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a "chilling
effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

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First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes in free
speech cases, also known under the American Law as First Amendment cases.103

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually
a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,104the US Supreme
Court held that "we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First
Amendment" (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state interest
in maintaining comprehensive control over harmful, constitutionally unprotected conduct." Undoubtedly, lawless
violence, insurrection and rebellion are considered "harmful" and "constitutionally unprotected conduct." In Broadrick v.
Oklahoma,105 it was held:

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face and when ‘such
summary action’ is inappropriate. But the plain import of our cases is, at the very least, that facial
overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction
moves from ‘pure speech’ toward conduct and that conduct –even if expressive – falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate
only "spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied to protected conduct."106 Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly
subject to state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only as
a last resort," and is "generally disfavored;"107 The reason for this is obvious. Embedded in the traditional rules
governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to
challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations
not before the Court.108 A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad law’s
"very existence may cause others not before the court to refrain from constitutionally protected speech or expression."
An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint
its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its
very existence may cause others not before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,109 it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of
the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and
above all the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions,
whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the
challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did
not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if
men of common intelligence must necessarily guess at its meaning and differ as to its application."110 It is
subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their
faces" statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. Again, petitioners did not even attempt to show that PP
1017 is vague in all its application. They also failed to establish that men of common intelligence cannot understand
the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

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 Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as
well any act of insurrection or rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or
upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency."

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive Secretary,111 this Court, through
Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote
of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of
the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent
in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the least benign,
these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to
declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only criterion for the
exercise of the calling-out power is that "whenever it becomes necessary," the President may call the armed forces
"to prevent or suppress lawless violence, invasion or rebellion." Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her Office’s vast intelligence network, she is in the best position to determine the actual condition of the
country.

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence,
invasion and rebellion. This involves ordinary police action. But every act that goes beyond the President’s calling-out
power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He
cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution,
the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to declare a "state of
rebellion" (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyo’s authority

102
to declare a "state of rebellion" emanates from her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is
harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a
state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII,
a provision on the State’s extraordinary power to take over privately-owned public utility and business affected with
public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be
deemed harmless, without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What
defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out
power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the executive
to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and
punishment, not commit any acts which will in any way render more difficult the restoration of order and the
enforcement of law."113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V. Mendoza, 114an
authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to
declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to
lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for
the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to
the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a
valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and
any act done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public
assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees,
are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of
Martial Law or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of
President Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless
violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based
on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed.

As the Executive in whom the executive power is vested, 115 the primary function of the President is to enforce the laws
as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials
and employees of his department. Before assuming office, he is required to take an oath or affirmation to the effect that
as President of the Philippines, he will, among others, "execute its laws." 116 In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of
the country,117 including the Philippine National Police118 under the Department of Interior and Local Government.119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza
Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact
laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in
Congress. They assail the clause "to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction."

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\

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was lifted 120 from Former
President Marcos’ Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me
by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1,
Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command
the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my
direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: "to
enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or
upon my direction." Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon
my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me personally or
upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code
of 1987). She may issue any of the following:

Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character in
implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of governmental operations in
pursuance of his duties as administrative head shall be promulgated in administrative orders.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of subordinate or temporary
interest which only concern a particular officer or office of the Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal administration, which the
President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines shall be issued as general or special orders.

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those
issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and
binding force as statutes because they were issued by the President in the exercise of his legislative power during the
period of Martial Law under the 1973 Constitution. 121

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the
authority to promulgate "decrees." Legislative power is peculiarly within the province of the Legislature. Section 1,
Article VI categorically states that "[t]he legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives." To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void
and, therefore, cannot be enforced. With respect to "laws," she cannot call the military to enforce or implement certain
laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like.
She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

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x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally
or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state
of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the
military not only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to the provision
of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and
under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public
utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President,
without any authority or delegation from Congress, to take over or direct the operation of any privately-owned public
utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the 1971
Constitutional Convention.122 In effect at the time of its approval was President Marcos’ Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over "the management, control and operation
of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and
Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . .
. for the successful prosecution by the Government of its effort to contain, solve and end the present national
emergency."

Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s inclusion of Section
17, Article XII in PP 1017 is an encroachment on the legislature’s emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President’s authority to declare "a state of national emergency" and
to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such
power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues
arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall
have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to "other
national emergency." If the intention of the Framers of our Constitution was to withhold from the President the
authority to declare a "state of national emergency" pursuant to Section 18, Article VII (calling-out power) and grant it to
Congress (like the declaration of the existence of a state of war), then the Framers could have provided so. Clearly, they
did not intend that Congress should first authorize the President before he can declare a "state of national emergency."
The logical conclusion then is that President Arroyo could validly declare the existence of a state of national emergency
even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected
with public interest, is a different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated,
different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed
together and considered in the light of each other.123 Considering that Section 17 of Article XII and Section 23 of Article
VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the
exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article
VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed
upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet
and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to
the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

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 (2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private
business affected with public interest is just another facet of the emergency powers generally reposed upon Congress.
Thus, when Section 17 states that the "the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the President. Now, whether or not the President
may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer, 125 held:

It is clear that if the President had authority to issue the order he did, it must be found in some provision of the
Constitution. And it is not claimed that express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate of his powers under the Constitution.
Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a
President . . . .;" that "he shall take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief
of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of the
Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military
commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though
"theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold
that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of
private property in order to keep labor disputes from stopping production. This is a job for the nation’s
lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant
executive power to the President. In the framework of our Constitution, the President’s power to see that
the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his
functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he
thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All legislative Powers herein granted
shall be vested in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers to "tsunami,"
"typhoon," "hurricane"and"similar occurrences." This is a limited view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger
to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity,
variety, and perception.127 Emergencies, as perceived by legislature or executive in the United Sates since 1933, have
been occasioned by a wide range of situations, classifiable under three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis,
pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. 131 This is evident
in the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears in Section 13, page 5? It
reads:

When the common good so requires, the State may temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government service. 132

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could this
be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

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MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to
delegate to the President the power to take over privately-owned public utility or business affected with public interest.

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary measures are
exercised, remains in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of government, with all its defects and shortcomings, in preference to
the commingling of powers in one man or group of men. The Filipino people by adopting parliamentary government
have given notice that they share the faith of other democracy-loving peoples in this system, with all its faults, as the
ideal. The point is, under this framework of government, legislation is preserved for Congress all the time, not excepting
periods of crisis no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative branch of enacting laws been
surrendered to another department – unless we regard as legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting a total war, or when it was engaged in a life-and-
death struggle to preserve the Union. The truth is that under our concept of constitutional government, in times of
extreme perils more than in normal circumstances ‘the various branches, executive, legislative, and judicial,’ given the
ability to act, are called upon ‘to perform the duties and discharge the responsibilities committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules
that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency, however, without
legislation, he has no power to take over privately-owned public utility or business affected with public interest. The
President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public
utility or business affected with public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with
public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of
the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and the
guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict, many
rights are curtailed and trampled upon. Here, the right against unreasonable search and seizure; the right
against warrantless arrest; and the freedom of speech, of expression, of the press, and of assembly under
the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without
warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. The arresting officers cited PP 1017
as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the
CIDG operatives "raided and ransacked without warrant" their office. Three policemen were assigned to guard their
office as a possible "source of destabilization." Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were "turned away and
dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from
the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does the
illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and
misabused135 and may afford an opportunity for abuse in the manner of application.136 The validity of a statute
or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its
effects in a particular case.137 PP 1017 is merely an invocation of the President’s calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the
end desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police,
expressly or impliedly, to conduct illegal arrest, search or violate the citizens’ constitutional rights.

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Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal
acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the essential
basis for the exercise of power, and not a mere incidental result arising from its exertion.138 This is logical. Just
imagine the absurdity of situations when laws maybe declared unconstitutional just because the officers implementing
them have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases passed upon
by the Court, majority of the provisions of the Revised Penal Code would have been declared unconstitutional a long
time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are "acts and commands
of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines." They are internal rules
issued by the executive officer to his subordinates precisely for the proper and efficientadministration of law. Such
rules and regulations create no relation except between the official who issues them and the official who receives
them.139 They are based on and are the product of, a relationship in which power is their source, and obedience, their
object.140 For these reasons, one requirement for these rules to be valid is that they must be reasonable, not arbitrary
or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and which is
invariably associated with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous and
vague concept. Congress has yet to enact a law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not only our
country, but the international community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic
slogans when it comes to the justification of the use of force against certain states and against groups operating
internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions – or threats of the use of force as the most recent by the United
States against Iraq – consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups
such as liberation movements, or by individuals.

The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom fighter." The
apparent contradiction or lack of consistency in the use of the term "terrorism" may further be demonstrated by the
historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba
in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who
controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing those acts from eventually
legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the
basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge the gap
between those who associate "terrorism" with any violent act by non-state groups against civilians, state functionaries
or infrastructure or military installations, and those who believe in the concept of the legitimate use of force when
resistance against foreign occupation or against systematic oppression of ethnic and/or religious groups within a state is
concerned.

The dilemma facing the international community can best be illustrated by reference to the contradicting categorization
of organizations and movements such as Palestine Liberation Organization (PLO) – which is a terrorist group for Israel
and a liberation movement for Arabs and Muslims – the Kashmiri resistance groups – who are terrorists in the perception
of India, liberation fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters for the United States,
terrorists for the Socialist camp – or, most drastically, the Afghani Mujahedeen (later to become the Taliban movement):
during the Cold War period they were a group of freedom fighters for the West, nurtured by the United States, and a
terrorist gang for the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way – because of opposing political interests that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group
and its actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in the divergent
interest of states. Depending on whether a state is in the position of an occupying power or in that of a rival, or
adversary, of an occupying power in a given territory, the definition of terrorism will "fluctuate" accordingly. A state may
eventually see itself as protector of the rights of a certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of
these conflicting interests of sovereign states that determine in each and every instance how a particular armed

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movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of double
standards" on this vital issue of international affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states – and not of peoples, in spite of the
emphasis in the Preamble to the United Nations Charter! – has become even more serious in the present global power
constellation: one superpower exercises the decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and the problem has become even more acute since
the terrorist attacks of 11 September 2001 I the United States. 141

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or military.
An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may
consider the act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and
oppression on their part. It must be remembered that an act can only be considered a crime if there is a law defining the
same as such and imposing the corresponding penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted
by President Marcos during the Martial Law regime. This decree is entitled "Codifying The Various Laws on Anti-
Subversion and Increasing The Penalties for Membership in Subversive Organizations." The word "terrorism" is
mentioned in the following provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by
President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define "acts of terrorism." Since there is
no law defining "acts of terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine
what acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently, there can be
indiscriminate arrest without warrants, breaking into offices and residences, taking over the media enterprises,
prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these can be effected in
the name of G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly, they violate the due
process clause of the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what are necessary
and appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the Order.
Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects against
unreasonable search and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized." 142 The plain import of the language of the Constitution
is that searches, seizures and arrests are normally unreasonable unless authorized by a validly issued search warrant
or warrant of arrest. Thus, the fundamental protection given by this provision is that between person and police must
stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants
of arrest.143

In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was arrested without
warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a criminal suspect; fourth,he was treated
brusquely by policemen who "held his head and tried to push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for seven (7) hours;
and seventh,he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a
person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest. During the inquest for
the charges of inciting to sedition and violation of BP 880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the invective "Oust Gloria Now" and their erroneous
assumption that petitioner David was the leader of the rally. 146 Consequently, the Inquest Prosecutor ordered his
immediate release on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the
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subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further,
he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally. 147

But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest
violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a
necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of
expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a
substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of
expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the
prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly
required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful
assembly. They were not committing any crime, neither was there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral argument, failed
to justify the arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly cannot be made a
crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action
cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score.
The question, if the rights of free speech and peaceful assembly are not to be preserved, is not as to the auspices under
which the meeting was held but as to its purpose; not as to the relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have
committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order,
they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different matter when the
State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et
al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacañang’s directive
canceling all permits previously issued by local government units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that "freedom of assembly is not to be limited, much less
denied, except on a showing of a clear and present danger of a substantive evil that the State has a right
to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing that an assembly presents a
clear and present danger that the State may deny the citizens’ right to exercise it. Indeed, respondents failed to show or
convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the
blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They
have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the
presence of clear and present danger. Here, petitioners were not even notified and heard on the revocation of their
permits.150 The first time they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect.
When a person’s right is restricted by government action, it behooves a democratic government to see to it that the
restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the press.
Petitioners’ narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily
Tribune’s offices were searched without warrant;second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o’ clock in the morning of February 25, 2006; fourth, the
search was conducted in the absence of any official of the Daily Tribune except the security guard of the building;
and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted
as saying that such raid was "meant to show a ‘strong presence,’ to tell media outlets not to connive or do
anything that would help the rebels in bringing down this government." Director General Lomibao further
stated that "if they do not follow the standards –and the standards are if they would contribute to instability
in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 – we
will recommend a ‘takeover.’" National Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of national emergency. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for
media coverage during times when the national security is threatened.151

110
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search
and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific
offence to be determined personally by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce. Section 8 mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age and discretion residing in the same locality. And Section 9 states that
the warrant must direct that it be served in the daytime, unless the property is on the person or in the place ordered to
be searched, in which case a direction may be inserted that it be served at any time of the day or night. All these rules
were violated by the CIDG operatives.

Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and democratic society
rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the
"We Forum" newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed,
with the further result that the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a democratic framework where a free,
alert and even militant press is essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We Forum"
newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The
search and seizure of materials for publication, the stationing of policemen in the vicinity of the The Daily
Tribune offices, and the arrogant warning of government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more
and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey. 153Undoubtedly,
the The Daily Tribune was subjected to these arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom
to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto should
always be obsta principiis.154

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribune’s offices and the
seizure of its materials for publication and other papers are illegal; and that the same are inadmissible "for any
purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the purpose
of gathering evidence and you admitted that the policemen were able to get the clippings. Is that not in admission of the
admissibility of these clippings that were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are
inadmissible for any purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues. So why
do you have to go there at 1 o’clock in the morning and without any search warrant? Did they become suddenly part of
the evidence of rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on Proclamation
1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police could go
and inspect and gather clippings from Daily Tribune or any other newspaper.
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SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this, we do not condone
this. If the people who have been injured by this would want to sue them, they can sue and there are
remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, illegal and
cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of 1017,
as I said, it cannot be condoned. You cannot blame the President for, as you said, a misapplication of the law. These
are acts of the police officers, that is their responsibility. 157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and "should result in no
constitutional or statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At
this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or
suppress lawless violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the
military and the police committed acts which violate the citizens’ rights under the Constitution, this Court has to declare
such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is considered an integral
part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have normally rendered
this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in
pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already,
there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the transcendental issues raised by the parties should not be "evaded;"
they must now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to
prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and
the relevant jurisprudence discussed earlier. However, PP 1017’s extraneous provisions giving the President express or
implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of
prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII
of the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility and
private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as Commander-in-Chief
– addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard
– that the military and the police should take only the "necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence."But the words "acts of terrorism" found in G.O. No. 5 have not
been legally defined and made punishable by Congress and should thus be deemed deleted from the said G.O. While
"terrorism" has been denounced generally in media, no law has been enacted to guide the military, and eventually the
courts, to determine the limits of the AFP’s authority in carrying out this portion of G.O. No. 5.

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On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless arrest
of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and
NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O.
No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on the
individual police officers concerned. They have not been individually identified and given their day in court. The civil
complaints or causes of action and/or relevant criminal Informations have not been presented before this Court.
Elementary due process bars this Court from making any specific pronouncement of civil, criminal or administrative
liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in
themselves. How to give the military the power it needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal balancing tasks of a democratic state.During emergency,
governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly
restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies
is that, it is possible to grant government the authority to cope with crises without surrendering the two vital principles
of constitutionalism: the maintenance of legal limits to arbitrary power, and political responsibility of the
government to the governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it
constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as
decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017
declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned public utility or business affected with public
interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017,
i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence." Considering that "acts of terrorism" have not yet been defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and
NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any
form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

IX. AMMENDMENTS, REVISIONS, REPEALS

a. AMMENDMENTS
 What is an amendment?
 An amendment to the Constitution is an improvement, a correction or a revision to
the original content approved in 1788. To date, 27 Amendments have been
approved, six have been disapproved and thousands have been discussed.
 How is the Constitution amended?
 Article V of the Constitution prescribes how an amendment can become a part of the
Constitution. While there are two ways, only one has ever been used. All 27
Amendments have been ratified after two-thirds of the House and Senate approve of
the proposal and send it to the states for a vote. Then, three-fourths of the states
must affirm the proposed Amendment.
 The other method of passing an amendment requires a Constitutional Convention to
be called by two-thirds of the legislatures of the States. That Convention can propose
as many amendments as it deems necessary. Those amendments must be approved
by three-fourths of the states.
 The actual wording of Article V is: “The Congress, whenever two thirds of both
Houses shall deem it necessary, shall propose Amendments to this Constitution, or,

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 on the Application of the Legislatures of two thirds of the several States, shall call a
Convention for proposing Amendments, which, in either Case, shall be valid to all
Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Conventions in three fourths thereof, as the
one or the other Mode of Ratification may be proposed by the Congress; Provided
that no Amendment which may be made prior to the Year One thousand eight
hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth
Section of the first Article; and that no State, without its Consent, shall be deprived
of its equal Suffrage in the Senate.”

b. ROMAN CATHOLIC ARCHBISHOP OF MANILA VS SOCIAL SECURITY COMMISSION (GR NO. 15045,
JANUARY 21, 1961)

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

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

Feria, Manglapus and Associates for petitioner-appellant.

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

GUTIERREZ DAVID, J.:

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

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

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

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

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

114
Act No. 1792, which took effect in 1957. This is clear indication that the Legislature intended to include charitable and
religious institutions within the scope of the law.

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

Appellant further argues that the Social Security Law is a labor law and, consequently, following the rule laid down in the
case of Boy Scouts of the Philippines vs. Araos (G.R. No. L-10091, January 29, 1958) and other cases 1, applies only to
industry and occupation for purposes of profit and gain. The cases cited, however, are not in point, for the reason that
the law therein involved expressly limits its application either to commercial, industrial, or agricultural establishments,
or enterprises. .

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

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

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

IN VIEW OF THE FOREGOING, Resolutions Nos. 572 kind 767, series of 1958, of the Social Security Commission are
hereby affirmed. So ordered with costs against appellant.

Paras, C.J., Padilla, Bautista Angelo, Paredes and Dizon, JJ., concur.

Concepcion, Reyes, J.B.L. and Barrera, JJ., concur in the result.

c. ESTRADA VS CASEDA (84 PHIL. 791)

G.R. No. L-1560             October 25, 1949

DEMETRIA ESTRADA, plaintiff-appellant, 
vs.
ULDARICO CASEDA, defendant-appellee.

San Juan, Africe, Yñquez and Benedicto and Enrique M. Fernando for appellant.
Jose E. Erfe for appellee.

TUASON, J.:

This case is before this Court for review of a decision of the Court of First Instance of Manila reversing the judgment of
the municipal court and declaring that "the plaintiff may not eject the defendant from the premises in question."

It appears that on September 5, 1945, plaintiff brought this suit, for unlawful detainer, alleging that defendant leased
from her a part of a dwelling at a monthly rental of P26; that on August 11, 1945, plaintiff notified defendant in writing to
115
vacate the premises under lease, because one of her married daughters was going to occupy them by the first of the
following month; that defendant refused to leave.

On October 13, 1945, Judge Mariano Nable, then of the municipal court, gave judgment for plaintiff with order for
defendant to pay the rent from October 1, 1945, at the rate of P26 a month.

On the case being appealed to the Court of First Instance, defendant filed an answer alleging as special defense, among
others not necessary to the solution of this appeal, "that the main motive of the plaintiff in bringing the present action is
to oust the defendant and lease the same premises to third parties who are willing to pay the black market rental."

In reversing the judgment of the municipal court, the Court of First Instance of Manila, Judge Rafael Dinglasa presiding,
said that "Commonwealth Act No. 689, as amended only provides three grounds for rejecting a lessee or occupant from
a building destined solely for dwelling, namely (1) for willful and deliberate non-payment of rents, (2) when the lessor
has to occupy the building leased, and (3) when the lessee shall have subleased the building or any part thereof as
dwelling or for dwelling purpose without the written consent of the proprietor." None of these conditions, according to
the court, was alleged much less proved. The court correctly held that the fact that the premises under lease were
needed by plaintiff's married daughter was not comprehended in the second ground.

The above requirements were provided in Commonwealth Act No. 689, which was approved October 15, 1945. Section
14 of that Act provided that the same "shall be in force for a period of two years after its approval." Republic Act No. 66,
approved October 18, 1946, amended section 14 of Commonwealth Act No. 689 so as to read as follows: "Section 14.
This Act shall be in force for a period of four years after its approval."

When did this four-year period commence to run? Is the present lease still within his period?

An amended act is ordinarily to be construed as if the original statute had been repealed, and a new and independent
act in the amended form had been adopted in its stead; or, as frequently stated by the courts, so far as regards any
action after the adoption of the amendment, as if the statute had been originally enacted in its amended form. The
amendment becomes a part of the original statute as if it had always been contained therein, unless such amendment
involves the abrogation of contractual relations between the state and others. Where an amendment leaves certain
portions of the original act unchanged, such portions are continued in force, with the same meaning and effect they had
before the amendment. So where an amendatory act provides that are existing statute shall be amended to read as
recited in the amendatory act, such portions of the existing law as are retained, either literally or substantially, are
regarded as a continuation of the existing law, and not as a new enactment. (59 C. J., 1096, 1097.)lawphi1.nêt

In accordance with this rule, the provision of Republic Act No. 66 amending section 14 of Commonwealth Act No. 689,
related back to, and should be computed from the date of the approval of the amended act, that is October 15, 1945.
The period as thus construed expired on October 15, 1949.

The judgment of Judge Dinglasan was correct, but, the period reckoned by the trial court being now over, our decision is
that judgment shall be rendered ejecting defendant from the house described in the complaint and ordering him to pay
rent at the rate of P26 a month from October 1, 1945. It is so ordered, without costs.

Ozaeta, Paras, Feria, Montemayor, Reyes and Torres, JJ., concur.

Moran, C.J., Mr. Justice Bengzon voted in conformity with this decision.

Separate Opinions

PADILLA, J.,  concurring:

I concur in the result. Commonwealth Act No. 689, as amended by Republic Act No. 66, cannot be given retroactive
effect. The cause of action in the case at bar arose before the passage of the Acts.

d. ERECTA, INC. VS NLRC (GR NO. 104215, MAY 08, 1996)

G.R. No. 114333             January 24, 1996

PANTRANCO NORTH EXPRESS, INC., petitioner, 

vs.
NATIONAL LABOR RELATIONS COMMISSION (NLRC), FIRST DIVISION and REYNALDO M. RUEDA,respondents.

DECISION

PUNO, J.:

The present petition for certiorari assails the Decision1 dated November 29, 1993, rendered by public respondent
National Labor Relations Commission (NLRC) in NLRC NCR CA No. 002166-91, which reversed the decision of the labor
arbiter.
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The facts show that on May 14, 1956, private respondent Reynaldo Rueda was employed as a bus conductor by
petitioner and later promoted to the position of Line Inspector-I.

Several years later, petitioner suffered financial setbacks and retrenched some of its employees. Rueda was among
those retrenched on September 16, 1978. He received separation pay in the amount of nine thousand pesos
(P9,000.00).

On February 9, 1981, Rueda was re-hired as a line inspector by petitioner. He again became a permanent (regular) line
inspector after the probationary period of six (6) months.

On June 29, 1987, Rueda got involved in a quarrel with a co-employee. He stabbed bus driver Bonifacio Bartolome.
Criminal and administrative complaints were filed against him. The criminal complaint for "Frustrated Homicide" filed in
the Quezon City Regional Trial Court was amicably settled by Rueda and Bartolome. Petitioner, however, through its
legal department, proceeded with its own investigation. Rueda claimed he stabbed Bartolome in self-defense. 2

In a Memorandum3 dated March 28, 1988, petitioner's legal department, through Atty. Antonio Pekas, recommended to
the Personnel Department the dismissal of Rueda.

Rueda requested for a reinvestigation of his case. He alleged that the case between him and Bartolome had already
been settled amicably. He also argued that he was not investigated by Atty. Pekas who recommended his dismissal. 4 His
request was denied.5

On May 4, 1988, Rueda met a vehicular accident. He suffered back injuries and went on sick leave from May 5, 1988 to
August 9, 1989. Even before the accident, Rueda has been diagnosed to be suffering from moderately advanced stage
of tuberculosis.

It appears that petitioner desisted from dismissing Rueda for stabbing Bartolome. Instead, it approved his retirement
"due to medical reasons." Rueda was advised to report to the Personnel Department for the processing of his clearances
and the payment of his retirement benefits.6

Again, Rueda appealed to petitioner not to retire him from the service. 7 His request was denied in a letter, dated July 1,
1988.8 He also learned that his retirement benefits would be computed from the date of his reemployment on February
9, 1981. He pleaded that his service with petitioner be computed continuously from the original date of his employment
on May 14, 1956, up to the last day of his sick leave on August 9, 1989. Petitioner rejected his plea.

On October 29, 1990, Rueda commenced an action for "illegal dismissal, reinstatement, backwages, damages and
attorney's fees" against petitioner. 9

In a Decision dated June 28, 1991, Labor Arbiter Pablo C. Espiritu, Jr., dismissed the complaint for lack of merit. The
dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered: dismissing the complaint for illegal dismissal
and damages for lack of merit, however, in the interest of compassionate justice and for humanitarian
considerations as manifested by respondent company, respondent is hereby ordered to pay complainant the
amount of P36,498.78 as retirement pay based on respondent company's policy of 35 days for every year of
service from February 9, 1981 to August 9, 1989, a fraction of at least six (6) months to be considered one (1)
year.

SO ORDERED.

Rueda appealed to public respondent National Labor Relations Commission (NLRC). 10 The decision of the labor arbiter
was reversed by public respondent. Public respondent held that Rueda should not be dismissed since, according to his
"Salaysay," he stabbed his co-employee in self-defense. However, in lieu of reinstatement, it ordered, inter alia, the
payment of Rueda's separation pay computed from his original employment on May 14, 1956, up to July 1, 1988, the
date of his alleged constructive dismissal. The dispositive portion of its Decision, 11dated November 29, 1993, provides:

WHEREFORE, the appealed Decision is hereby SET ASIDE and a new one entered ordering respondent to pay
complainant the total amount of P286,449.37 broken down as follows:

1. Backwages for three (3) years P 135,567.12

2. Separation pay computed at 35 days for every year of
service (32 years less 2 years gap) per company policy P 124,841.40
3. Attorney's fees equivalent to 10% of the total amount
awarded P 26,040.85
GRAND TOTAL P 286,449.37

SO ORDERED.

117
Hence, the petition.

The first issue in the case at bar is whether Rueda's dismissal was illegal.

Article 282 of the Labor Code includes serious misconduct as among the just causes of termination of employment by an
employer, viz.:

(1) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;

(2) Gross and habitual neglect by the employee of his duties;

(3) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative;

(4) Commission of a crime or offense by the employee against the person of his employer or any immediate
member of his family or his duly authorized representative; and

(5) Other causes analogous to the foregoing.

The Labor Code12 also considers illness and retrenchment to prevent losses as valid grounds for termination of
employment, subject to the conditions specified therein.

Petitioner anchors its right to terminate the employment of Rueda on the ground of serious misconduct.

In its Comment,13 the Office of the Solicitor General (OSG) contends that petitioner cannot capitalize on Rueda's alleged
serious misconduct in stabbing his co-employee since his forced retirement was premised on his health problems.

We agree with the Solicitor General. The facts show that petitioner abandoned serious misconduct as a ground to
dismiss Rueda when it opted to retire him due to illness. A memorandum to this effect was issued by petitioner on May
10, 1988, thus:

Memorandum for -

ATTY. MANUEL VIJUNCO

Chairman - Management Committee

Thru: MR. ANGELITO D. YNIGUEZ

General Manager

Subject: REYNALDO RUEDA

Mr. Reynaldo Rueda was recommended for dismissal by our Legal Department for inflicting bodily injury to one
of our drivers, Mr. Bartolome. The Management Committee however, reconsidered his case and approved his
retirement instead.

Mr. Rueda was rehired on February 9, 1981, and is only 52 years old. Per provisions of the existing CBA, he is
not qualified to retirement (sic). However, Mr. Rueda has a history of PTB. His latest X-ray taken on January
1988 showed that he is still afflicted with the disease. Based on his physical condition we can, therefore,
consider his retirement due to medical reasons.

RODRIGO R. SAN PEDRO

Head; Personnel Department

Dismissal is the ultimate penalty that can be meted to an employee. It must, therefore, be based on a clear and not on
an ambiguous or ambivalent ground. Any ambiguity or ambivalence on the ground relied upon by an employer in
terminating the services of an employee denies the latter his full right to contest its legality. Fairness cannot
countenance such ambiguity or ambivalence.

We cannot uphold Rueda's dismissal on the ground of serious misconduct.

Neither can we affirm the legality of Rueda's retirement due to illness. The Rules and Regulations Implementing the
Labor Code,14 provide:

Sec. 8. Disease as a ground for dismissal. - Where the employee suffers from a disease and his continued
employment is prohibited by law or prejudicial to his health or to the health of his co-employees, the employer

118
 shall not terminate his employment unless there is a certification by a competent public health authority that
the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months even
with proper medical treatment. If the disease or ailment can be cured within the period, the employer
shall not terminate the employee but shall ask the latter to take a leave. The employer shall reinstate such
employee to his former position immediately upon the restoration of his normal health. (Emphasis supplied)

In this case, petitioner did not submit the required certification by a competent public health authority to show that
Rueda's illness could not be cured within the period specified under the aforequoted rule. The radiograph report
submitted by petitioner merely stated Rueda's disease. In the absence of such certification, Rueda's retirement due to
illness has no leg to stand on.15

We now come to the consequences that should visit the petitioner for illegally dismissing Rueda. Under the Labor
Code,16 an illegally dismissed employee is entitled to reinstatement and to backwages. In this case, however, public
respondent deemed it proper to order the payment of Rueda's backwages and separation pay, in lieu of reinstatement.
Public respondent noted that petitioner is "in severe financial strait, nay, on the verge of collapse," thus, making Rueda's
reinstatement impractical or impossible. We find no cogent reason to set aside public respondent's findings on this
matter. Be that as it may, we cannot sustain the ruling of public respondent in the computation of Rueda's separation
pay, thus:

xxx       xxx       xxx

We do not agree with the Labor Arbiter's observation that prescription had set in with regard to complainant's
claim for computation of separation pay, i.e., from the time he was originally hired on May 14, 1956 and not
from his rehiring on February 9, 1981, after he was retrenched on September 16, 1978. The issue does not
involve merely the prescription of separation pay differentials but the legality of his retrenchment and the
continuity of his employment status for purposes of computing separation pay. We note that despite
complainant's claim that his retrenchment in 1978 was not for a valid cause, respondent did not offer any
explanation therefor, much less for the meager retrenchment pay that was given to complainant. In order to
give protection to labor, we deem the complainant to have been merely on leave without pay during the two
and a half years that he was out of work until he was rehired. This gap should, however, be deducted from his
total years of service which is hereby computed from the time he was hired on May 14, 1956 up to July 1, 1988
when he was constructively dismissed. The amount of P9,000.00 which he received supposedly as
retrenchment benefit in 1978 should be deducted from said entitlement.

We hold that public respondent gravely abused its discretion in reckoning the employment of Rueda from May 14, 1956,
for the purpose of computing his separation pay. It completely disregarded the fact that Rueda did not question his
retrenchment in 1978, as indeed, he received his separation pay without protest. Even assuming, arguendo, that
Rueda's retrenchment was unjustified, it is now too late to raise it as an issue on the ground of prescription. Rueda
should have protested his retrenchment within four (4) years pursuant to Art. 1146 of the Civil Code. 17 As correctly ruled
by the labor arbiter, Rueda's length of service with petitioner should be reckoned from February 7, 1981, the date he
was rehired, until August 9, 1989 which was the last day of his sick leave of absence.

WHEREFORE, the assailed decision of the National Labor Relations Commission, in NLRC-NCR Case No. 002166-91, is
AFFIRMED with the modification that, petitioner is ordered to pay Rueda's separation pay at the rate provided for in
Article 284 of the Labor Code, as amended, with his length of service to be computed from the date he was rehired in
1981 until the expiration of his sick leave in August 1989. No costs.

SO ORDERED.

Regalado, Romero and Mendoza, JJ., concur.

e. SARCOS VS CASTILLO (GR NO. L-29755, JUNE 31, 1969)

G.R. No. L-29755             January 31, 1969

DOMINGO N. SARCOS, as Mayor of Barobo, Surigao del Sur, petitioner, 

vs.
HON. RECAREDO CASTILLO, as Provincial Governor of Surigao del Sur, and THE HON. PROVINCIAL BOARD
OF SURIGAO DEL SUR, respondents.

Sisenando Villaluz, Jr. for respondents.

Cristeto O. Cimagala for petitioner.

  FERNANDO, J.:

119
  Is the power of preventive suspension of a municipal mayor against whom charges have been filed still vested in the
provincial governor? That is the novel question presented in this petition for certiorari and prohibition. Such an authority
he did possess under the former law. 1 Then came the Decentralization Act of 1967, which took effect on September 12
of that year. 2

  What before could not be denied apparently no longer holds true. The statutory provision now controlling yields a
contrary impression. The question must thus be answered in the negative. We hold that such a power has been withheld
from the provincial governor and may no longer be exercised by him.

  Petitioner Domingo N. Sarcos, the duly elected Mayor of Barobo, Surigao del Sur, running as an independent candidate
but winning, nonetheless, in the November 14, 1967 election, was charged with misconduct and dishonesty in office by
respondent Recaredo Castillo, the Provincial Governor of Surigao del Sur.  3 The act constituting the alleged dishonesty
and misconduct in office consisted in petitioner allegedly "[conniving] with certain private individuals to cut and fell
[timber] and [selling] the [timber] or logs so cut or felled for their own use and benefit, within the communal forest
reserve of the Municipality of Barobo, Province of Surigao del Sur, to the damage and prejudice of the public and of the
government; ...." 4

  In the answer of respondent Castillo as well as the other respondent, the Provincial Board of Surigao del Sur, there was
an admission of the fact that as set forth in the petition on October 4, 1968, such an administrative complaint for such
an alleged offense was indeed filed by respondent Governor with respondent Provincial Board. What was sought to be
stressed in the answer, however, was that as early as April 18, 1968, a charge under oath for abuse of official power in
consenting to and authorizing the violations of forestry laws was filed against petitioner by the Municipal Council of
Barobo, Surigao del Sur. He was then given the opportunity to answer and explain within 72 hours, in an order of
respondent Governor date May 21, 1968. The explanation offered by petitioner contained the following: "These logs
which I caused to be hauled sometime within the month of January, 1968, were the same logs cut and tumbled down by
the persons abovementioned within the communal forests of Barobo, Surigao del Sur, and which were seized by the
patrolmen of the undersigned. The said logs were sold in order to raise funds for the purchase of the police uniforms and
arms." 5

  It was on the basis of the above administrative complaint that respondent Governor, according to the petition, ordered
the "immediate suspension [ofpetitioner] from his position as Mayor of Barobo, Surigao del Sur; the same Administrative
Order ... [containing] the immediate designation of Vice-Mayor [Brigido L. Mercader] of the same town as Acting
[Mayor]." 6

  Such administrative order for the preventive suspension of petitioner was admitted by respondent Governor and
sought to be justified thus: "[Considering] that the acts charged against and admitted by the petitioner 'affects his
official integrity,' as such Municipal Mayor, by his having taken the law into his own hands; ..., there was an urgent
necessity to order the immediate 'preventive suspension' of the petitioner, in accordance with the provisions of Section
5, of Republic Act No. 5185, otherwise known as the 'Decentralization Act of 1967'." 7

  The decisive issue therefore, as set forth at the outset of this opinion, is whether or not respondent Provincial Governor
is vested with power to order such preventive suspension under the Decentralization Act of 1967, more specifically
Section 5 thereof. For if no such authority exists, then whatever be the alleged justification for preventive suspension
cannot validate the action taken by theGovernor. To assert otherwise would be to negate the rule of law.

  What does Section 5 provide? It opens with the categorical declaration: "Any provision of law to the contrary
notwithstanding, the suspension and removal of elective local officials shall be governed exclusively by the provisions of
this section."

  After setting forth in the next paragraph the grounds for suspension and removal of elective local officials, namely,
disloyalty to the Republic of the Philippines, dishonesty, oppression, and misconduct in office, it continues: "Written
subscribed and sworn charges against any elective provincial and city official shall be preferred before the President of
the Philippines; against any elective municipal official before the provincial governor or the secretary of the provincial
board concerned; and against any elective barrio official before the municipal or city mayor or the municipal or city
secretary concerned."

  Then comes the portion specifically dealing with preventive suspension. This paragraph reads thus: "Within seven days
after the charges are preferred, the President, Governor, or Mayor, as the case may be, or his duly authorized
representative, as provided in the preceding paragraph, shall notify the respondent of such charges. The President,
Provincial Board and City or Municipal Council, as the case may be, shall hear and investigate the truth or falsity of the
charges within ten days after receipt of such notice: Provided, That no investigation shall commence or continue within
ninety days immediately prior to an election. The preventive suspension of the respondent officer shall not extend
beyond sixty days after the date of his suspension. At the expiration of sixty days, the suspended officer, shall be
reinstated in office without prejudice to the continuation of the proceedings against him until their completion, unless
the delay in the decision of the case is due to the fault, neglect or request of the suspended officer, in which case, the
time of delay shall not be counted in computing the time of suspension: Provided, however, That if the suspended officer
shall have been found guilty as charged before the expiration of the thirty days, his suspension, in the case of municipal
and barrio officials, may continue until the case is finally decided by the Provincial Board."

  Considering that Section 5 leaves no doubt as to this particular paragraph governing exclusively the suspension and
removal of elective local officials, it must be apparent why, as previously stated, respondent Provincial Governor lacks
the authority to order the preventive suspension of petitioner.

120
 1. Under the former law then in force which stands repealed by virtue of the Decentralization Act,  8 the
provincial governor, if the charge against a municipal official was one affecting his official integrity could order
his preventive suspension. 9 At present, the law is anything but that. A reading of the pertinent paragraph above
quoted makes manifest that it is the provincial board to which such a power has been granted under conditions
therein specified. The statutory provision is worded differently. The principle, that the deliberate selection of
language other than that used in an earlier act is indicative that a change in the law was intended, calls for
application. 10

2. This conclusion has reinforcement from a fundamental postulate of constitutional law. Public officials possess
powers, not rights. There must be, therefore, a grant of authority whether express or implied, to justify any
action taken by them. In the absence thereof, what they do as public officials lacks validity and, if challenged,
must be set aside. To paraphrase a leading American decision, 11 law is the only supreme power under
constitutional government, and every man who by accepting office participates in its function is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise
of the authority which it gives.

  Here, clearly, no such authority is vested in the provincial governor. Instead, the statutory scheme, complete on its
face, would locate such power in the provincial board. There would be no support for the view, then, that the action
taken by the provincial governor in issuing the order of preventive suspension in this case was in accordance with law.

3. Moreover, any other view would be to betray lack of fidelity to the purpose so manifest in the controlling
legal provision. It is fundamental that once the policy or purpose of the law has been ascertained, effect should
be given to it by the judiciary. From Ty Sue v. Hord, 12 decided in 1909, it has been our constant holding that the
choice between conflicting theories falls on that which best accords with the letter of the law and with its
purpose. The next year, in an equally leading decision, United States v. Toribio, 13 there was a caveat against a
construction that would tend "to defeat the purpose and object of the legislator." Then came the admonition in
Riera v. Palmaroli, 14 against an application so narrow "as to defeat the manifest purpose of the legislator." This
was repeated in the latest case, Commissioner of Customs v. Caltex, 15 in almost identical language.1awphil.ñêt

  So it is in the United States. 16 Thus, in an 1898 decision, the then Justice, later Chief Justice, White minimized reliance
on the subtle signification of words and the niceties of verbal distinction stressing the fundamental rule of carrying out
the purpose and objective of legislation. 17 As succinctly put by the then Justice, later Chief Justice, Stone: "All statutes
must be construed in the light of their purpose." 18 The same thought has been phrased differently. Thus: "The purpose
of Congress is a dominant factor in determining meaning." 19 For, to paraphrase Frankfurter, legislative words are not
inert but derive vitality from the obvious purposes at which they are aimed. 20The same jurist likewise had occasion to
state: "Regard for [its] purposes should infuse the construction of the legislation if it is to be treated as a working
instrument of government and not merely as a collection of English words." 21 In the sixth annual Benjamin Nathan
Cardozo lecture delivered by him, entitled "Some Reflections on the Reading of Statutes", he developed the theme
further: "The generating consideration is that legislation is more than composition. It is an active instrument of
government which, for purposes of interpretation, means that laws have ends to be achieved. It is in this connection that
Holmes said, 'words are flexible.' Again it was Holmes, the last judge to give quarter to loose thinking or vague yearning,
who said that "the general purpose is a more important aid to the meaning than any rule which grammar or formal logic
may lay down." And it was Holmes who chided courts for being 'apt to err by sticking too closely to the words of a law
where those words import a policy that goes beyond them.' Note, however, that he found the policy in 'those words'." 22

  It may be noted parenthetically that earlier, the United States Supreme Court was partial more to the term "objective"
or "policy" rather than "purpose." So it was in the first decision where this fundamental principle of construction was
relied upon, the opinion coming from Chief Justice Marshall. Thus: "The two subjects were equally within the province of
the legislature, equally demanded their attention, and were brought together to their view. If, then, the words making
provision for each, fairly admit of an equally extensive interpretation,and of one of which will effect the object that
seems to have been in contemplation, and which was certainly desirable, they ought to receive that interpretation." 23

  So, too, with his successor, Chief Justice Taney. Thus: "This construction cannot be maintained. In expounding a
statute, we must not be guided by a single sentence or member of a sentence, but look to the whole law, and to its
object and policy." 24 It should not escape attention that the above excerpt was quoted with approval by the present
Chief Justice Warren as late as 1957. 25

  What is the purpose of the Decentralization Act of 1967? It is set forth in its declaration of policy. 26 It is "to transform
local governments gradually into effective instruments through which the people can in a most genuine fashion, govern
themselves and work out their own destinies." 27 In consonance with such policy, its purpose is "to grant to local
governments greater freedom and ampler means to respond to the needs of their people and promote their prosperity
and happiness and to effect a more equitable and systematic distribution of governmental powers and resources." 28

  It is undeniable therefore that municipalities, as much as cities and provinces, are by this act invested with "greater
freedom and ampler means to respond to the needs of their people and promote their prosperity and happiness." It is
implicit in our constitutional scheme that full autonomy be accorded the inhabitants of the local units to govern
themselves. Their choice as to who should be theirpublic officials must be respected. Those elected must serve out their
term. If they have to be removed at all it should be for cause in accordance with the procedure prescribed and by the
specific officials of higher category entrusted with such responsibility.

  It is easily understandable why as held in a leading case, Lacson v. Roque, 29 "strict construction of law relating to
suspension and removal is the universal rule." As was further emphasized by Justice Tuason who penned the opinion:
"When dealing with elective posts, the necessity for restricted construction is greater." Deference to such a doctrine
possessed of intrinsic merit calls for due care lest by inadvertence the power to suspend preventively is given to officials

121
other than those specifically mentioned in the act. For any other view would result in a dilution of the avowed purpose to
vest as great a degree of local autonomy as is possible to municipal corporations. That would be to defeat and frustrate
rather than to foster the policy of the act.1awphil.ñêt

4. Lastly, the construction here reached, as to the absence of power on the part of provincial governors to
suspend preventively a municipal mayor is buttressed by the avoidance of undesirable consequences flowing
from a different doctrine. Time and time again, it has been stressed that while democracy presupposes the
right of the people to govern themselves in elections that call for political parties contending for supremacy,
once the election is over the equally pressing and urgent concern for efficiency would necessitate that purely
partisan considerations be ignored, and if not entirely possible, be restricted to a minimum.

  The present litigation gives rise to the suspicion that politics did intrude itself. Petitioner Municipal Mayor, an
independent candidate, and thus of a different political persuasion, appeared to have been placed at a disadvantage. It
would be a realistic assumption that there is the ever present temptation on the part of provincial governors, to utilize
every opportunity to favor those belonging to his party. At times, it may even prove irresistible.

  It is desirable therefore that such opportunity be limited. The statutory provision then should be given such a
construction that would be productive of such a result. That is what we do in this case. To paraphrase Justice Tuason, we
test a doctrine by its consequences.

  It could be said, of course, that to deny such a power to a provincial governor but at the same time to affirm the
existence thereof insofar as the provincial board is concerned would not advance the cause of decentralization any. In
answer, it suffices to note that the Decentralization Act having so recognized such an authority in the provincial board,
the judiciary must perforce recognize its existence. Until after the legislature decrees otherwise, the courts have no
alternative but to accord deference to such declared congressional policy. It may also be stated that the provincial board
being a collective body, the first, second and third class provinces being composed of the provincial governor, the vice-
governor and three other members elected at large by the qualified electors of the province, and that in the fourth, fifth,
sixth and seventh class provinces having in addition to the provincial governor and the vice-governor two other
members likewise elected at large, 30 there is a safeguard against the temptation to utilize this power of preventive
suspension for purely partisan ends. What one person may feel free to do, fully conscious as he is that the authority
belongs to him alone, may not even be attempted when such an individual shares such power with others who could
possibly hold dissenting views. At any rate, there is a brake, which it is hoped would suffice on most if not all occasions.

  Such a restraining influence is indeed needed for the undeniable facts of the contemporary political scene bear witness
to efforts, at times disguised, at other times quite blatant, on the part of local officials to make use of their positions to
gain partisan advantage. Harassment of those belonging to opposing factions or groups is not unknown. Unfortunately,
no stigma seems to attach to what really amounts to a misuse of official power. The truism that a public office is a public
trust, implicit in which is the recognition that public advantage and not private benefit should be the test of one's
conduct, seems tohave been ignored all too often. The construction of any statute therefore, even assuming that it is
tainted by ambiguity, which would reduce the opportunity of any public official to make use of his position for partisan
ends, has much to recommend it.

  5. We hold, therefore, that under Section 5 of the Decentralization Act of 1967, the power of preventive suspension is
not lodged in the provincial governor. To rule otherwise would be at war with the plain purpose of the law and likewise
fraught with consequences far from desirable. We close with this appropriate excerpt from an opinion of Justice Holmes
rendered on circuit duty: "The Legislature has the power to decide what the policy of the law shall be, and if it has
intimated its will, however indirectly, that should be recognized and obeyed. The major premise of the conclusion
expressed in a statute, the changeof policy that induces the enactment, may not be set out in terms, but it is not an
adequate discharge of duty for the courts to say: We see what you are driving at but you have not said it, and therefore,
we shall go on as before." 31

  WHEREFORE, the writs prayed for are granted, the preventive suspension of petitioner by respondent Castillo annulled
and set aside with the result that his immediate reinstatement to his position as Municipal Mayor of Barobo, Surigao del
Sur, is ordered, without prejudice to any further proceedings to be taken by respondent Provincial Board in connection
with the charge of misconduct and dishonesty in office against petitioner, respondent Provincial Board being strictly
enjoined in the disposition of such administrative complaint to act strictly in accordance with the applicable law. Without
costs.

  Concepcion. C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano, Teehankee and Barredo, JJ.,
concur.

f. REVISIONS AND CODIFICATIONS

 A constitutional revision is a holistic and fundamental change to a state constitution, in

contrast to a constitutional amendment, which is a piecemeal change to part of a
constitution. Revisions are changes that involve alterations in the structure.

 Codified laws refer to the rules and regulations that have been collected, restated, and
written down for the purpose of providing civil order to a society. This process of collecting,
restating, and writing down laws is known as codification.

122
 g. MECANO VS COMMISIION ON AUDIT (GR NO. 103982, DECEMBER 11, 1992)

G.R. No. 103982 December 11, 1992

ANTONIO A. MECANO, petitioner, 
vs.
COMMISSION ON AUDIT, respondent.

CAMPOS, JR., J.:

Antonio A. Mecano, through a petition for certiorari, seeks to nullify the decision of the Commission on Audit (COA, for
brevity) embodied in its 7th Indorsement, dated January 16, 1992, denying his claim for reimbursement under Section
699 of the Revised Administrative Code (RAC), as amended, in the total amount of P40,831.00.

Petitioner is a Director II of the National Bureau of Investigation (NBI). He was hospitalized for cholecystitis from March
26, 1990 to April 7, 1990, on account of which he incurred medical and hospitalization expenses, the total amount of
which he is claiming from the COA.

On May 11, 1990, in a memorandum to the NBI Director, Alfredo S. Lim (Director Lim, for brevity), he requested
reimbursement for his expenses on the ground that he is entitled to the benefits under Section 699 1 of the RAC, the
pertinent provisions of which read:

Sec. 699. Allowances in case of injury, death, or sickness incurred in performance of duty. — When a
person in the service of the national government of a province, city, municipality or municipal district
is so injured in the performance of duty as thereby to receive some actual physical hurt or wound, the
proper Head of Department may direct that absence during any period of disability thereby occasioned
shall be on full pay, though not more than six months, and in such case he may in his discretion also
authorize the payment of the medical attendance, necessary transportation, subsistence and hospital
fees of the injured person. Absence in the case contemplated shall be charged first against vacation
leave, if any there be.

xxx xxx xxx

In case of sickness caused by or connected directly with the performance of some act in the line of
duty, the Department head may in his discretion authorize the payment of the necessary hospital fees.

Director Lim then forwarded petitioner's claim, in a 1st Indorsement dated June 22, 1990, to the Secretary of Justice,
along with the comment, bearing the same date, of Gerarda Galang, Chief, LED of the NBI, "recommending favorable
action thereof". Finding petitioner's illness to be service-connected, the Committee on Physical Examination of the
Department of Justice favorably recommended the payment of petitioner's claim.

However, then Undersecretary of Justice Silvestre H. Bello III, in a 4th Indorsement dated November 21, 1990, returned
petitioner's claim to Director Lim, having considered the statements of the Chairman of the COA in its 5th Indorsement
dated 19 September 1990, to the effect that the RAC being relied upon was repealed by the Administrative Code of
1987.

Petitioner then re-submitted his claim to Director Lim, with a copy of Opinion No. 73, S. 1991 2 dated April 26, 1991 of
then Secretary of Justice Franklin M. Drilon (Secretary Drilon, for brevity) stating that "the issuance of the Administrative
Code did not operate to repeal or abregate in its entirety the Revised Administrative Code, including the particular
Section 699 of the latter".

On May 10, 1991, Director Lim, under a 5th Indorsement transmitted anew Mecano's claim to then Undersecretary Bello
for favorable consideration. Under a 6th Indorsement, dated July 2, 1991, Secretary Drilon forwarded petitioner's claim
to the COA Chairman, recommending payment of the same. COA Chairman Eufemio C. Domingo, in his 7th Indorsement
of January 16, 1992, however, denied petitioner's claim on the ground that Section 699 of the RAC had been repealed by
the Administrative Code of 1987, solely for the reason that the same section was not restated nor re-enacted in the
Administrative Code of 1987. He commented, however, that the claim may be filed with the Employees' Compensation
Commission, considering that the illness of Director Mecano occurred after the effectivity of the Administrative Code of
1987.

Eventually, petitioner's claim was returned by Undersecretary of Justice Eduardo Montenegro to Director Lim under a 9th
Indorsement dated February 7, 1992, with the advice that petitioner "elevate the matter to the Supreme Court if he so
desires".

123
On the sole issue of whether or not the Administrative Code of 1987 repealed or abrogated Section 699 of the RAC, this
petition was brought for the consideration of this Court.

Petitioner anchors his claim on Section 699 of the RAC, as amended, and on the aforementioned Opinion No. 73, S. 1991
of Secretary Drilon. He further maintains that in the event that a claim is filed with the Employees' Compensation
Commission, as suggested by respondent, he would still not be barred from filing a claim under the subject section.
Thus, the resolution of whether or not there was a repeal of the Revised Administrative Code of 1917 would decide the
fate of petitioner's claim for reimbursement.

The COA, on the other hand, strongly maintains that the enactment of the Administrative Code of 1987 (Exec. Order No.
292) operated to revoke or supplant in its entirety the Revised Administrative Code of 1917. The COA claims that from
the "whereas" clauses of the new Administrative Code, it can be gleaned that it was the intent of the legislature to
repeal the old Code. Moreover, the COA questions the applicability of the aforesaid opinion of the Secretary of Justice in
deciding the matter. Lastly, the COA contends that employment-related sickness, injury or death is adequately covered
by the Employees' Compensation Program under P.D. 626, such that to allow simultaneous recovery of benefits under
both laws on account of the same contingency would be unfair and unjust to the Government.

The question of whether a particular law has been repealed or not by a subsequent law is a matter of legislative intent.
The lawmakers may expressly repeal a law by incorporating therein a repealing provision which expressly and
specifically cites the particular law or laws, and portions thereof, that are intended to be repealed. 3 A declaration in a
statute, usually in its repealing clause, that a particular and specific law, identified by its number or title, is repealed is
an express repeal; all others are implied repeals. 4

In the case of the two Administrative Codes in question, the ascertainment of whether or not it was the intent of the
legislature to supplant the old Code with the new Code partly depends on the scrutiny of the repealing clause of the new
Code. This provision is found in Section 27, Book VII (Final Provisions) of the Administrative Code of 1987 which reads:

Sec. 27. Repealing Clause. — All laws, decrees, orders, rules and regulations, or portions thereof,
inconsistent with this Code are hereby repealed or modified accordingly.

The question that should be asked is: What is the nature of this repealing clause? It is certainly not an express repealing
clause because it fails to identify or designate the act or acts that are intended to be repealed. 5 Rather, it is an example
of a general repealing provision, as stated in Opinion No. 73, S. 1991. It is a clause which predicates the intended repeal
under the condition that substantial conflict must be found in existing and prior acts. The failure to add a specific
repealing clause indicates that the intent was not to repeal any existing law, unless an irreconcilable inconcistency and
repugnancy exist in the terms of the new and old laws. 6 This latter situation falls under the category of an implied
repeal.

Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an intention on the part
of the legislature to abrogate a prior act on the subject, that intention must be given effect. 7 Hence, before there can be
a repeal, there must be a clear showing on the part of the lawmaker that the intent in enacting the new law was to
abrogate the old one. The intention to repeal must be clear and manifest; 8 otherwise, at least, as a general rule, the later
act is to be construed as a continuation of, and not a substitute for, the first act and will continue so far as the two acts
are the same from the time of the first enactment. 9

There are two categories of repeal by implication. The first is where provisions in the two acts on the same subject
matter are in an irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the
earlier one. The second is if the later act covers the whole subject of the earlier one and is clearly intended as a
substitute, it will operate to repeal the earlier law. 10

Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject matter; they
are so clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized; and both
cannot be given effect, that is, that one law cannot be enforced without nullifying the other. 11

Comparing the two Codes, it is apparent that the new Code does not cover nor attempt to cover the entire subject
matter of the old Code. There are several matters treated in the old Code which are not found in the new Code, such as
the provisions on notaries public, the leave law, the public bonding law, military reservations, claims for sickness
benefits under Section 699, and still others.

Moreover, the COA failed to demonstrate that the provisions of the two Codes on the matter of the subject claim are in
an irreconcilable conflict. In fact, there can be no such conflict because the provision on sickness benefits of the nature
being claimed by petitioner has not been restated in the Administrative Code of 1987. However, the COA would have Us
consider that the fact that Section 699 was not restated in the Administrative Code of 1987 meant that the same section
had been repealed. It further maintained that to allow the particular provisions not restated in the new Code to continue
in force argues against the Code itself. The COA anchored this argument on the whereas clause of the 1987 Code, which
states:

WHEREAS, the effectiveness of the Government will be enhanced by a new Administrative Code which
incorporate in a unified document the major structural, functional and procedural principles and rules
of governance; and

x x x           x x x          x x x

124
It argues, in effect, that what is contemplated is only one Code — the Administrative Code of 1987. This contention is
untenable.

The fact that a later enactment may relate to the same subject matter as that of an earlier statute is not of itself
sufficient to cause an implied repeal of the prior act, since the new statute may merely be cumulative or a continuation
of the old one. 12 What is necessary is a manifest indication of legislative purpose to repeal. 13

We come now to the second category of repeal — the enactment of a statute revising or codifying the former laws on
the whole subject matter. This is only possible if the revised statute or code was intended to cover the whole subject to
be a complete and perfect system in itself. It is the rule that a subsequent statute is deemed to repeal a prior law if the
former revises the whole subject matter of the former statute. 14 When both intent and scope clearly evidence the idea of
a repeal, then all parts and provisions of the prior act that are omitted from the revised act are deemed
repealed.15 Furthermore, before there can be an implied repeal under this category, it must be the clear intent of the
legislature that the later act be the substitute to the prior act. 16

According to Opinion No. 73, S. 1991 of the Secretary of Justice, what appears clear is the intent to cover only those
aspects of government that pertain to administration, organization and procedure, understandably because of the many
changes that transpired in the government structure since the enactment of the RAC decades of years ago. The COA
challenges the weight that this opinion carries in the determination of this controversy inasmuch as the body which had
been entrusted with the implementation of this particular provision has already rendered its decision. The COA relied on
the rule in administrative law enunciated in the case of Sison vs. Pangramuyen17 that in the absence of palpable error or
grave abuse of discretion, the Court would be loathe to substitute its own judgment for that of the administrative agency
entrusted with the enforcement and implementation of the law. This will not hold water. This principle is subject to
limitations. Administrative decisions may be reviewed by the courts upon a showing that the decision is vitiated by
fraud, imposition or mistake.18 It has been held that Opinions of the Secretary and Undersecretary of Justice are material
in the construction of statutes in pari materia.19

Lastly, it is a well-settled rule of statutory construction that repeals of statutes by implication are not favored. 20 The
presumption is against inconsistency and repugnancy for the legislature is presumed to know the existing laws on the
subject and not to have enacted inconsistent or conflicting statutes. 21

This Court, in a case, explains the principle in detail as follows: "Repeals by implication are not favored, and will not be
decreed unless it is manifest that the legislature so intended. As laws are presumed to be passed with deliberation with
full knowledge of all existing ones on the subject, it is but reasonable to conclude that in passing a statute it was not
intended to interfere with or abrogate any former law relating to some matter, unless the repugnancy between the two
is not only irreconcilable, but also clear and convincing, and flowing necessarily from the language used, unless the later
act fully embraces the subject matter of the earlier, or unless the reason for the earlier act is beyond peradventure
renewed. Hence, every effort must be used to make all acts stand and if, by any reasonable construction, they can be
reconciled, the later act will not operate as a repeal of the earlier. 22

Regarding respondent's contention that recovery under this subject section shall bar the recovery of benefits under the
Employees' Compensation Program, the same cannot be upheld. The second sentence of Article 173, Chapter II, Title II
(dealing on Employees' Compensation and State Insurance Fund), Book IV of the Labor Code, as amended by P.D. 1921,
expressly provides that "the payment of compensation under this Title shall not bar the recovery of benefits as provided
for in Section 699 of the Revised Administrative Code . . . whose benefits are administered by the system (meaning SSS
or GSIS) or by other agencies of the government."

WHEREFORE, premises considered, the Court resolves to GRANT the petition; respondent is hereby ordered to give due
course to petitioner's claim for benefits. No costs.

SO ORDERED.

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

Gutierrez, Jr., J., concur in the result.

h. ORTIZ VS COMELEC (GR NO. 78957, JUNE 28, 1988)

G.R. No. 78957 June 28, 1988

MARIO D. ORTIZ, petitioner, 
vs.
COMMISSION ON ELECTIONS and COMMISSION ON AUDIT, respondents.

FERNAN, J.:

125
In this petition for certiorari, petitioner presents before the Court the issue of whether or not a constitutional official
whose "courtesy resignation" was accepted by the President of the Philippines during the effectivity of the Freedom
Constitution may be entitled to retirement benefits under Republic Act No. 1568, as amended.

Petitioner was appointed Commissioner of the Commission on Elections [COMELEC] by then President Ferdinand E.
Marcos "for a term expiring May 17, 1992." 1 He took his oath of office on July 30, 1985.

On March 5, 1986, together with Commissioners Quirino D. Marquinez and Mangontawar G. Guro, petitioner sent
President Corazon C. Aquino a letter which reads as follows:

The undersigned Commissioners were appointed to the Commission on Elections on July 30, 1985.

Following the example of Honorable Justices of the Supreme Court, on the premise that we have now a
revolutionary government, we hereby place our position at your disposal. 2

Thereafter, or on March 25,1986, the Freedom Constitution was promulgated through Proclamation No. 3, Artide III
thereof provides:

SECTION 1. In the reorganization of the government, priority shall be given to measures to promote
economy, efficiency, and the eradication of graft and corruption.

SEC. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue
in office until otherwise provided by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such is made within a period of one year from
February 25, 1986.

SEC. 3. Any public officer or employee separated from the service as a result of the reorganization
effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement
and other benefits accruing thereunder.

On April 16,1986, the COMELEC, then composed of Chairman Ramon H. Felipe, Jr. and Commissioners Froilan M.
Bacungan, Quirino A. Marquinez, Mario D. Ortiz (petitioner herein), Ruben E. Agpalo and Jaime J. Layosa, adopted
Resolution No. 86-2364 approving the application for retirement of Commissioners Victorino Savellano and Jaime
Opinion. Seven days later, the same body passed Resolution No. 862370 approving the application for retirement of
Commissioner Mangontawar B. Guro.

On July 21, 1986, the Deputy Executive Secretary requested Acting Chairman Felipe to convey the information to
Commissioners Marquinez, Ortiz, Agpalo and Layosa that the President had "accepted, with regrets, their
respective resignations, effective immediately." 3 After the presidential acceptance of said "resignations," the new
COMELEC was composed of Ramon H. Felipe, Jr. as Chairman and Commissioners Froilan M. Bacungan, Leopoldo L.
Africa, Haydee B. Yorac, Andres R. Flores, Dario C, Rama and Anacleto D. Badoy, Jr., as members. It was to this body that
Commissioners Agpalo, Ortiz and Marquinez submitted on July 30, 1986 their respective applications for retirement.
They were followed by Commissioner Layosa on August 1, 1986.

To justify their petitions for retirement and their requests for payment of retirement benefits, all seven former COMELEC
Commissioners invoked Republic Act No. l568 as amended by Republic Act No. 3595 and re-enacted by Republic Act No.
6118, specifically the following provision:

SECTION 1. When the Auditor General or the Chairman or any Member of the Commission on Elections
retires from the service for having completed his term of office or by reason of his incapacity to
discharge the duties of his office, or dies while in the service, or resigns at any time after reaching the
age of sixty years but before the expiration of his term of office, he or his heirs shall be paid in lump
sum his salary for one year, not exceeding five years, for every year of service based upon the last
annual salary that he was receiving at the time of retirement incapacity, death or resignation, as the
case may be: Provided, That in case of resignation, he has rendered not less than twenty years of
service in the government; And provided, further, That he shall receive an annuity payable monthly
during the residue of his natural life equivalent to the amount of monthly salary he was receiving on
the date of retirement, incapacity or resignation.

In its en banc Resolution No. 86-2491 * of August 13, 1986 4 the COMELEC revoked Resolutions Nos. 86-2364 dated April
16, 1986 and 86-2370 dated April 23, 1986, and denied the applications for retirement of Commissioners Marquinez,
Agpalo, Ortiz and Layosa on the ground that they were "not entitled to retirement benefits under Republic Act No. 1568,
as amended" without specifying the reason therefor. 5

Petitioner Ortiz moved for the reconsideration of said resolution, contending that he was entitled to the benefits under
Republic Act No. 1568, as amended. He averred therein that he did not resign but simply placed his position at the
disposal of the President; that he had in fact completed his term as Commissioner by the "change in the term of [his]
office and eventual replacement," and that he was entitled to retirement benefits under the aforementioned law
because Article 1186 of the Civil Code which states that "the condition [with regard to an obligation] shall be deemed
fulfilled when the obligor voluntarily prevents its fulfillment." He invoked the aforequoted provisions of Proclamation No.
3 and cited the cases of former Chief Justice Ramon C. Aquino and Associate Justice Hermogenes Concepcion, Jr. who
were allowed to retire by this Court and receive retirement benefits. 6
126
Petitioner's letter/motion for reconsideration was denied by the COMELEC in its en banc resolution of October 1,
1986.** On December 18, 1986, petitioner appealed the denial of his claim to the Chairman of the Commission on Audit
[COA]. In its memorandum dated January 15, 1987, the COA referred the matter to the COMELEC resident auditor for
comment and recommendation. Having failed to receive any communication from the COA for some six months, on June
3, 1987, petitioner reiterated his appeal thereto. Again, the matter was referred to the COMELEC resident auditor with a
request for immediate action thereon.

A month later, or on July 9, 1987, petitioner filed the instant petition for certiorari alleging that the COMELEC's "arbitrary
and unjust denial" of his claim for retirement benefits and of his subsequent motion for reconsideration constitutes
"grave and whimsical abuse of discretion amounting to lack of jurisdiction" which can only be remedied through the
instant petition in the absence of an appeal or any plain, speedy and adequate remedy. 7 In his memorandum, however,
petitioner admits that, as correctly stated by the Solicitor General in respondents' comment on the petition, this petition
is basically one for a writ of mandamus aimed at compelling both the COMELEC and the COA to approve his claim for
retirement benefits. 8

We consider this case as a special civil action of both certiorari and mandamus and, notwithstanding the Solicitor
General's contention that action herein is premature as the COA may yet render a decision favorable to the petitioner,
We opt to decide this case to shed light on the legal issue presented.

The respondents posit the view that petitioner's "voluntary resignation" prevented the completion of his term of office,
and, therefore, having rendered only sixteen years of service to the government, he is not entitled to retirement
benefits. 9

We disagree. Petitioner's separation from government service as a result of the reorganization ordained by the then
nascent Aquino government may not be considered a resignation within the contemplation of the law. Resignation is
defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to
use it. 10 To constitute a complete and operative act of resignation, the officer or employee must show a clear intention
to relinquish or surrender his position accompanied by the act of relinquishment. 11 Resignation implies an expression of
the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish the office, and its
acceptance by competent and lawful authority. 12

From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention to surrender his
position. We cannot presume such intention from his statement in his letter of March 5, 1986 that he was placing his
position at the disposal of the President. He did not categorically state therein that he was unconditionally giving up his
position. It should be remembered that said letter was actually a response to Proclamation No. 1 which President Aquino
issued on February 25,1986 when she called on all appointive public officials to tender their "courtesy resignation" as a
"first step to restore confidence in public administration.

Verily, a "courtesy resignation" can lot properly be interpreted as resignation in the legal sense for it is not necessarily a
reflection of a public official's intention to surrender his position. Rather, it manifests his submission to the will of the
political authority and the appointing power.

A stringent interpretation of courtesy resignations must therefore be observed, particularly in cases involving
constitutional officials like the petitioner whose removal from office entails an impeachment proceeding. 13 For even if
working for the government is regarded as no more than a privilege, discharge for disloyalty or for doubt about loyalty
may involve such legal rights as those in reputation and eligibility for other employment. 14

The curtailment of his term not being attributable to any voluntary act on the part of the petitioner, equity and justice
demand that he should be deemed to have completed his term albeit much ahead of the date stated in his appointment
paper. Petitioner's case should be placed in the same category as that of an official holding a primarily confidential
position whose tenure ends upon his superior's loss of confidence in him. His cessation from the service entails no
removal but an expiration of his term. 15

As he is deemed to have completed his term of office, petitioner should be considered retired from the service. And, in
the absence of proof that he has been found guilty of malfeasance or misfeasance in office or that there is a pending
administrative case against him, petitioner is entitled to a life pension under Republic Act No. 1568 as amended and
reenacted by Republic Act No. 6118. He is, therefore, protected by the mantle of the Freedom Constitution specifically
Article III, Section 3 thereof which was in effect when he was replaced by the appointment and qualification of a new
Commissioner.

Parenthetically, to a public servant, pension is not a gratuity but rather a form of deferred compensation for services
performed and his right thereto commences to vest upon his entry into the retirement system and becomes an
enforceable obligation in court upon fulfillment of all conditions under which it is to be paid. 16 Similarly, retirement
benefits receivable by public employees are valuable parts of the consideration for entrance into and continuation in
public employment. 17 They serve a public purpose and a primary objective in establishing them is to induce able
persons to enter and remain in public employment, and to render faithful and efficient service while so employed. 18

Worth noting is the fact that, as originally enacted, Republic Act No. 1568 required not less than twenty years of service
in the government at the time of the retirement, death or resignation of the Auditor General or the Chairman and any
Member of the COMELEC. The same length of service was required after Republic Act No. 3473 amended the law.
However, Republic Act No. 3595 further amended Republic Act No. 1568 and the 20-year service requirement was
mandated only in case of resignation of the public official covered by the law. Although Republic Act No. 1568, as

127
amended, was inoperative and abolished in Section 9 of Republic Act No. 4968, it was re-enacted under Republic Act No.
6118.

On the respondents' assertion that the retirement law is clear and hence, there is no room for its interpretation, We
reiterate the basic principle that, being remedial in character, a statute creating pensions should be liberally construed
and administered in favor of the persons intended to be benefited thereby. 19 This is as it should be because the liberal
approach aims to achieve the humanitarian purposes of the law in order that the efficiency, security, and well-being of
government employees may be enhanced. 20

WHEREFORE, respondent Commission on Elections denial of petitioner's application for retirement benefits is hereby
reversed and set aside. The Commission on Audit and other public offices concerned are directed to facilitate the
processing and payment of petitioner's retirement benefits.

SO ORDERED.

Yap, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino
and Medialdea, JJ., concur.

i. REPEALS
 Repeal means to revoke or rescind, especially by an official or formal act. To repeal a law is to
void an existing law, by passage of a repealing statute, or by public vote on a referendum.
 A repeal is the removal or reversal of a law. There are two basic types of repeal, a repeal with
a re-enactment (or replacement) of the repealed law, or a repeal without any replacement.
 Art. 7, New Civil Code. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.
 When the courts declare a law to be inconsistent with the constitution, the former shall be
void and the latter shall govern. Administrative or executive acts, orders and regulations shall
be valid only when they are not contrary to laws or the constitution.
 How laws are repealed:
 Expressly- by direct act of congress.
 Impliedly- occurring inconsistencies on all points between a prior and a subsequent
law.

j. BERCES VS GUINGONA (G241 SCRA 539, 1995)

G.R. No. 112099 February 21, 1995

ACHILLES C. BERCES, SR., petitioner, 

vs.
HON. EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR., CHIEF PRESIDENTIAL LEGAL COUNSEL ANTONIO
CARPIO and MAYOR NAOMI C. CORRAL OF TIWI, ALBAY, respondents.

QUIASON, J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court with prayer for mandatory
preliminary injunction, assailing the Orders of the Office of the President as having been issued with grave abuses of
discretion. Said Orders directed the stay of execution of the decision of the Sangguniang Panlalawigan suspending the
Mayor of Tiwi, Albay from office.

Petitioner filed two administrative cases against respondent Naomi C. Corral, the incumbent Mayor of Tiwi, Albay with
the Sangguniang Panlalawigan of Albay, to wit:

(1) Administrative Case No. 02-92 for abuse of authority and/or oppression for non-payment of accrued
leave benefits due the petitioner amounting to P36,779.02.

(2) Administrative Case No. 05-92 for dishonesty and abuse of authority for installing a water pipeline
which is being operated, maintained and paid for by the municipality to service respondent's private
residence and medical clinic.

On July 1, 1993, the Sangguniang Panlalawigan disposed the two Administrative cases in the following manner:

(1) Administrative Case No. 02-92

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 ACCORDINGLY, respondent Mayor Naomi C. Corral of Tiwi, Albay, is hereby ordered to pay Achilles
Costo Berces, Sr. the sum of THIRTY-SIX THOUSAND AND SEVEN HUNDRED SEVENTY-NINE PESOS and
TWO CENTAVOS (P36,779.02) per Voucher No. 352, plus legal interest due thereon from the time it
was approved in audit up to final payment, it being legally due the Complainant representing the
money value of his leave credits accruing for services rendered in the municipality from 1988 to 1992
as a duly elected Municipal Councilor. IN ADDITION, respondent Mayor NAOMI C. CORRAL is hereby
ordered SUSPENDED from office as Municipal Mayor of Tiwi, Albay, for a period of two (2) months,
effective upon receipt hereof for her blatant abuse of authority coupled with oppression as a public
example to deter others similarly inclined from using public office as a tool for personal vengeance,
vindictiveness and oppression at the expense of the Taxpayer (Rollo, p. 14).

(2) Administrative Case No. 05-92

WHEREFORE, premises considered, respondent Mayor NAOMI C. CORRAL of Tiwi, Albay, is hereby
sentenced to suffer the penalty of SUSPENSION from office as Municipal Mayor thereof for a period of
THREE (3) MONTHS beginning after her service of the first penalty of suspension ordered in
Administrative Case No. 02-92. She is likewise ordered to reimburse the Municipality of Tiwi One-half
of the amount the latter have paid for electric and water bills from July to December 1992, inclusive
(Rollo, p. 16).

Consequently, respondent Mayor appealed to the Office of the President questioning the decision and at the same time
prayed for the stay of execution thereof in accordance with Section 67(b) of the Local Government Code, which
provides:

Administrative Appeals. — Decision in administrative cases may, within thirty (30) days from receipt
thereof, be appealed to the following:

x x x           x x x          x x x

(b) The Office of the President, in the case of decisions of the sangguniang
panlalawigan and the sangguniang panglungsod of highly urbanized cities and
independent component cities.

Acting on the prayer to stay execution during the pendency of the appeal, the Office of the President issued an Order on
July 28, 1993, the pertinent portions of which read as follows:

xxx xxx xxx

The stay of the execution is governed by Section 68 of R.A. No. 7160 and Section 6 of Administrative
Order No. 18 dated 12 February 1987, quoted below:

Sec. 68. Execution Pending Appeal. — An appeal shall not prevent a decision from becoming final or
executory. The respondent shall be considered as having been placed under preventive suspension
during the pendency of an appeal in the events he wins such appeal. In the event the appeal results in
an exoneration, he shall be paid his salary and such other emoluments during the pendency of the
appeal (R.A. No. 7160).

Sec. 6 Except as otherwise provided by special laws, the execution of the decision/resolution/order
appealed from is stayed upon filing of the appeal within the period prescribed herein. However, in all
cases, at any time during the pendency of the appeal, the Office of the President may direct or stay
the execution of the decision/resolution/order appealed from upon such terms and conditions as it may
deem just and reasonable (Adm. Order No. 18).

xxx xxx xxx

After due consideration, and in the light of the Petition for Review filed before this Office, we find that
a stay of execution pending appeal would be just and reasonable to prevent undue prejudice to public
interest.

WHEREFORE, premises considered, this Office hereby orders the suspension/stay of execution of:

a) the Decision of the Sangguniang Panlalawigan of Albay in Administrative Case No.

02-92 dated 1 July 1993 suspending Mayor Naomi C. Corral from office for a period of
two (2) months, and

b) the Resolution of the Sangguniang Panlalawigan of Albay in Administrative Case.

No. 05-92 dated 5 July 1993 suspending Mayor Naomi C. Corral from office for a
period of three (3) months (Rollo, pp. 55-56).

Petitioner then filed a Motion for Reconsideration questioning the aforesaid Order of the Office of the President.

129
On September 13, 1990, the Motion for Reconsideration was denied.

Hence, this petition.

II

Petitioner claims that the governing law in the instant case is R.A. No. 7160, which contains a mandatory provision that
an appeal "shall not prevent a decision from becoming final and executory." He argues that administrative Order No. 18
dated February 12, 1987, (entitle "Prescribing the Rules and Regulations Governing Appeals to Office the President")
authorizing the President to stay the execution of the appealed decision at any time during the pendency of the appeal,
was repealed by R.A. No. 7160, which took effect on January 1, 1991 (Rollo, pp. 5-6).

The petition is devoid of merit.

Petitioner invokes the repealing clause of Section 530 (f), R.A. No. 7160, which provides:

All general and special laws, acts, city charters, decrees, executive orders, administrative regulations,
part or parts thereof, which are incosistent with any of the provisions of this Code, are hereby repealed
or modified accordingly.

The aforementioned clause is not an express repeal of Section 6 of Administrative Order No. 18 because it failed to
identify or designate the laws or executive orders that are intended to be repealed (cf. I Sutherland, Statutory
Construction 467 [1943]).

If there is any repeal of Administrative Order No. 18 by R.A. No. 7160, it is through implication though such kind of
repeal is not favored (The Philippine American Management Co., Inc. v. The Philippine American Management Employees
Association, 49 SCRA 194 [1973]). There is even a presumption against implied repeal.

An implied repeal predicates the intended repeal upon the condition that a substantial conflict must be found between
the new and prior laws. In the absence of an express repeal, a subsequent law cannot be construed as repealing a prior
law unless an irreconcible inconsistency and repugnancy exists in the terms of the new and old laws (Iloilo Palay and
Corn Planters Association, Inc. v. Feliciano, 13 SCRA 377 [1965]). The two laws must be absolutely incompatible
(Compania General de Tabacos v. Collector of Customs, 46 Phil. 8 [1924]). There must be such a repugnancy between
the laws that they cannot be made to stand together (Crawford, Construction of Statutes 631 [1940]).

We find that the provisions of Section 68 of R.A. No. 7160 and Section 6 of Administrative Order No. 18 are not
irreconcillably inconsistent and repugnant and the two laws must in fact be read together.

The first sentence of Section 68 merely provides that an "appeal shall not prevent a decision from becoming final or
executory." As worded, there is room to construe said provision as giving discretion to the reviewing officials to stay the
execution of the appealed decision. There is nothing to infer therefrom that the reviewing officials are deprived of the
authority to order a stay of the appealed order. If the intention of Congress was to repeal Section 6 of Administrative
Order No. 18, it could have used more direct language expressive of such intention.

The execution of decisions pending appeal is procedural and in the absence of a clear legislative intent to remove from
the reviewing officials the authority to order a stay of execution, such authority can provided in the rules and regulations
governing the appeals of elective officials in administrative cases.

The term "shall" may be read either as mandatory or directory depending upon a consideration of the entire provisions
in which it is found, its object and the consequences that would follow from construing it one way or the other (cf. De
Mesa v. Mencias, 18 SCRA 533 [1966]). In the case at bench, there is no basis to justify the construction of the word as
mandatory.

The Office of the President made a finding that the execution of the decision of the Sagguniang Panlalawigan suspending
respondent Mayor from office might be prejudicial to the public interest. Thus, in order not to disrupt the rendition of
service by the mayor to the public, a stay of the execution of the decision is in order.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza
and Francisco, JJ., concur.

k. CITY GOVERNMENT OF SAN PABLO, LAGUNA VS REYES (GR NO. 127708, MARCH 25, 1999)

G.R. No. 127708 March 25, 1999

130
CITY GOVERNMENT OF SAN PABLO, LAGUNA, CITY TREASURER OF SAN PABLO, LAGUNA and THE
SANGGUNIANG PANGLUNSOD OF SAN PABLO, LAGUNA, petitioners, 
vs.
HONORABLE BIENVENIDO V. REYES, in his capacity as Presiding Judge, Regional Trial Court, Branch 29, San
Pablo City and the MANILA ELECTRIC COMPANY, respondents.

GONZAGA-REYES, J.:

This is a petition under Rule 45 of the Rules of Court to review on a pure question of law the decision of the Regional
Trial Court (RTC) of San Pablo City, Branch 29 in Civil Case No. SP-4359(96), entitled "Manila Electric Company vs. City of
San Pablo, Laguna, City Treasurer of San Pablo Laguna, and the Sangguniang Panglunsod of San Pablo City, Laguna."
The RTC declared the imposition of a franchise tax under Section 2.09 Article D of Ordinance No. 56 otherwise known as
the Revenue Code of the City of San Pablo as ineffective and void insofar as the respondent MERALCO is concerned for
being violative of Act No. 3648, Republic Act No. 2340 and PD 551. The RTC also granted MERALCO'S claim for refund of
franchise taxes paid under protest.

The following antecedent facts are undisputed:

Act No. 3648 granted the Escudero Electric Service Company a legislative franchise to maintain and operate an electric
light and power system in the City of San Pablo and nearby municipalities. Section 10 of Act No. 3648 provides:

. . . In consideration of the franchise and rights hereby granted, the grantee shall pay unto the
municipal treasury of each municipality in which it is supplying electric current to the public under this
franchise, a tax equal to two percentum of the gross earnings from electric current sold or supplied
under this franchise in each said municipality. Said tax shall be due and payable quarterly and shall be
in lieu of any and all taxes of any kind nature or description levied, established or collected by any
authority whatsoever, municipal, provincial or insular, now or in the future, on its poles, wires,
insulator, switches, transformers, and structures, installations, conductors, and accessories placed in
and over and under all public property, including public streets and highways, provincial roads, bridges
and public squares, and on its franchise, rights. privileges, receipts, revenues and profits from which
taxes the grantee is hereby expressly exempted.

Escudero's franchise was transferred to the plaintiff (herein respondent) MERALCO under Republic Act No. 2340.

Presidential Decree No. 551 was enacted on September 11, 1974. Section 1 thereof provides the following:

Sec. 1. Any provision of law or local ordinance to the contrary notwithstanding, the franchise tax
payable by all grantees of franchise to generate, distribute and sell electric current for light, heat and
power shall be two percent (2%) of their gross receipts received from the sale of electric current and
from transactions incident to the generation, distribution and sale of electric current.

Such franchise tax shall be payable to the Commissioner of Internal Revenue of his duly authorized
representative on or before the twentieth day of the month following the end of each calendar quarter
or month as may be provided in the respective franchise or pertinent municipal regulation and shall,
any provision of the Local Tax Code or any other law to the contrary notwithstanding, be in lieu of all
taxes and assessments of whatever nature imposed by any national or local authority on earnings,
receipts, income and privilege of generation, distribution and sale of electric current.

Republic Act No. 7160, otherwise known as the "Local Government Code of 1991" (hereinafter referred to as LGC) took
effect on January 1, 1992. The said Code authorizes the province/city to impose a tax on business enjoying a franchise at
a rate not exceeding fifty percent (50%) of one percent (1%) of the gross annual receipts for the preceding calendar
year realized within its jurisdiction.

On October 5, 1992, the Sangguniang Panglunsod of San Pablo City enacted Ordinance No. 56, otherwise known as the
Revenue Code of the City of San Pablo. The said Ordinance took effect on October 30, 1992. 1

Sec. 2.09, Article D of said Ordinance provides:

Sec. 2.09. Franchise Tax — There is hereby imposed a tax on business enjoying a franchise, at a rate
of fifty percent (50%) of one percent (1%) of the cross annual receipts, which shall include both cash
sales and sales on account realized during the preceding calendar year within the city.

Pursuant to the above-quoted Section 2.09, the petitioner City Treasurer sent to private respondent a letter demanding
payment of the aforesaid franchise tax. From 1994 to 1996, private respondent paid "under protest" a total amount of
P1,857,711.67. 2

The private respondent subsequently filed this action before the Regional Trial Court to declare Ordinance No. 56 null
and void insofar as it imposes the franchise tax upon private respondent MERALCO 3 and to claim for a refund of the
taxes paid.
131
The Court ruled in favor of MERALCO and upheld its argument that the LGC did not expressly or impliedly repeal the tax
exemption/incentive enjoyed by it under its charter The dispositive portion of the decision reads:

WHEREFORE, the imposition of a franchise tax under Sec. 2.09, Article D of Ordinance No. 56
otherwise known as the Revenue Code of the City of San Pablo, is declared ineffective and null and
void insofar as the plaintiff MERALCO is concerned for being of Republic Act. No. 2340, PD 551, and
Republic Act No. 7160 and defendants are ordered to refund to the plaintiff the amount of ONE
MILLION EIGHT HUNDRED FIFTY SEVEN THOUSAND SEVEN HUNDRED ELEVEN & 67/100
(P1,857,711.67) and such other amounts as may have been paid by the plaintiff under said Revenue
Ordinance No. 56 after the filling of the complaint. 4

SO ORDERED.

Its motion for records for reconsideration having been denied by the trial court. 5 the petitioners filed the instant petition
with this Court raising pure question of law based on the following grounds:

I. RESPONDENT JUDGE GRAVELY ERRED IN HOLDING THAT ACT NO. 3648, REPUBLIC
ACT NO 2340 AND PRESIDENTIAL DECREE NO. 551, AS AMENDED, INSOFAR AS THEY
GRANT TAX INCENTIVES, PRIVILEGES AND IMMUNITIES TO PRIVATE RESPONDENT,
HAVE NOT BEEN REPEALED BY REPUBLIC ACT NO. 7160.

II. RESPONDENT JUDGE GRAVELY ERRED IN RULING THAT SECTION 193 OF REPUBLIC
ACT NO. 7160 HAS NOT WITHDRAWN THE TAX INCENTIVES, PRIVILEGES AND
IMMUNITIES BEING ENJOYED BY THE PRIVATE RESPONDENT UNDER ACT NO. 3648
REPUBLIC ACT NO. 2340 AND PRESIDENTIAL DECREE NO. 551 AS AMENDED.

III. RESPONDENT JUDGE GRAVELY ERRED IN HOLDING THAT THE FRANCHISE TAX IN
QUESTION CONSTITUTES AN IMPAIRMENT OF THE CONTRACT BETWEEN THE
GOVERNMENT AND PRIVATE RESPONDENT.

Petitioners' position is that RA 7160 (LGC) expressly repealed Act No. 3648, Republic Act No. 2340 and Presidential
Decree 551 and that pursuant to the provisions of Sections 137 and 193 of the LGC, the province or city now has the
power to impose a franchise tax on a business enjoying a franchise. Petitioners rely on the ruling in the case of Mactan
Cebu International Airport Authority vs. Marcos 6 where the Supreme Court held that the exemption from real property
tax granted to Mactan Cebu International Airport Authority under its charter has been withdrawn upon the effectivity of
the LGC.

In addition, the petitioners cite in their Memorandum dated December 8, 1993 an administrative interpretation made by
the Bureau of Local Government Finance of the Department of Finance in its 3rd indorsement dated February 15, 1994
to the effect that the earlier ruling of the Department of Finance that holders of franchise which contain the phrase "in
lieu of all taxes" proviso are exempt from the payment of any kind of tax is no longer applicable upon the effectivity of
the LGC in view of the withdrawal of tax exemption privileges as provided in Sections 193 and 234 thereof.

We resolve to reverse the court a quo.

The pivotal issue is whether the City of San Pablo may impose a local franchise tax pursuant to the LGC upon the Manila
Electric Company which pays a tax equal to two percent of its gross receipts in lieu of all taxes and assessments of
whatever nature imposed by any national or local authority on savings or income.

It is necessary to reproduce the pertinent provisions of the LGC.

Sec. 137 — Franchise Tax — Notwithstanding any exemption granted by any law or other special law,
the province may impose a tax on business enjoying a franchise, at a rate not exceeding fifty percent
50% of one percent 1% of the gross annual receipts for the preceding calendar year based on the
incoming receipts, or realized, within its territorial jurisdiction. . . .

Sec. 151 — Scope of Taxing Powers — Except as otherwise provided in this Code, the city, may levy
the taxes, fees, and charges which the province or municipality may impose: Provided, however, That
the taxes, fees and charges levied and collected by highly urbanized and independent component
cities shall accrue to them and distributed in accordance with the provisions of this Code.

The rates of taxes that the city may levy may exceed the maximum rates allowed for the province or
municipality by not more than fifty percent (50%) except the rates of professional and amusement
taxes.

Sec. 193 — Withdrawal of Tax Exemption Privileges — Unless otherwise provided in this Code, tax
exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical,
including government-owned or controlled corporations, except local water districts, cooperatives duly
registered under R.A. 6938, non- stock and non-profit hospitals and educational institutions, are
hereby withdrawn upon the effectivity of this Code.

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 Sec. 534 (f) — Repealing Clause — All general and special law, acts, city charters, decrees, executive
orders, proclamation 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.

Sec. 534 (f), the repealing clause of the LGC, provides that all general and special laws, act, city charters, decrees,
executive orders, proclamations and administrative regulations or parts thereof which are inconsistent with any of the
provisions of the Code are hereby repealed or modified accordingly.

This clause partakes of the nature of a general repealing clause. 7 It is certainly not an express repealing clause because
it fails to designate the specific act or acts identified by number or title, that are intended to be repealed. 8

Was there an implied repeal by Republic Act No. 7160 of the MERALCO franchise insofar as the latter imposes a 2% tax
"in lieu of all taxes and assessments of whatever nature"?

We rule affirmatively.

We are mindful of the established rule that repeals by implication are not favored as laws are presumed to be passed
with deliberation and full knowledge of all laws existing on the subject. A general law cannot be construed to have
repealed a special law by mere implication unless the intent to repeal or alter is manifest 9 and it must be convincingly
demonstrated that the two laws are so clearly repugnant and patently inconsistent that they cannot co-exist. 10

It is our view that petitions correctly rely on the provisions of Sections 137 and 193 of the LGC to support their position
that MERALCO`s tax exemption has been withdrawn. The explicit language of Section 137 which authorizes the province
to impose franchise tax "notwithstanding any exemption granted by any law or other special law" is all-encompassing
and clear. The franchise tax is imposable despite any exemption enjoyed under special laws.

Sec. 193 buttresses the withdrawal of extant tax exemption privileges. By stating that unless otherwise provided in this
Code, tax exemptions or incentives granted to or presently enjoyed by all persons whether natural or juridical, including
government-owned or controlled corporations except 1) local water districts, 2) cooperatives duly registered under R.A.
6938, (3) non-stock and non-profit hospitals and educational institutions, are withdrawn upon the effectivity of this code,
the obvious import is to limit the exemptions to the three enumerated entities. It is a basic precept of statutory
construction that the express mention of one person, thing, act, or consequence excludes all others as expressed in the
familiar maxim expressio untus est exclusio alterius. 11 In the absence of any provision of the Code to the contrary, and
we find no other provision in point, any existing tax exemption or incentive enjoyed by MERALCO under existing law was
clearly intended to be withdrawn.

Reading together Sections 137 and 193 of the LGC, we conclude that under the LGC the local government unit may now
impose a local tax at a rate not exceeding 50% of 1% of the gross annual receipts for the preceding calendar year based
on the incoming receipts realized within its territorial jurisdiction. The legislative purpose to withdraw tax privileges
enjoy under existing law or charter is clearly manifested by the language used in Sections 137 end 193 categorically
withdrawing such exemption subject only to the exceptions enumerated. Since it would be not only tedious and
impractical to attempt to enumerate all the existing statutes providing for special tax exemptions or privileges, the LGC
provided for an express, albeit general, withdrawal of such exemptions or privileges. No more unequivocal language
could have been used.

It is true that the phrase "in lieu of all taxes" found in special franchises has been held in several cases to exempt the
franchise holder from payment of tax on its corporate franchise imposed of the Internal Revenue Code, as the charter is
in the nature of a private contract and the exemption is part of the inducement for the acceptance of the franchise, and
that the imposition of another franchise tax by the local authority would constitute an impairment of contract between
the government and the corporation. 12 But these "magic words" contained in the phrase "shall be in lieu of all
taxes'' 13 have to give way to the peremptory language of the LGC specifically providing for the withdrawal of such
exemption privileges.

Accordingly in Mactan Cebu International Airport Authority vs.

Marcos. 14 this Court held that Section 193 of the LGC prescribes the general rule, viz., the tax exemption or incentives,
granted to or presently enjoyed by natural or juridical persons are withdrawn upon the effectivity of the LGC except with
respect to those entities expressly enumerated. In the same vein, We must hold that the express withdrawal upon
effectivity of the LGC of all exemptions except only as provided therein, can no longer be invoked by Meralco to disclaim
liability for the local tax.

Private respondents further argue that the "in lieu of" provision contained in PD 551, Act. No. 3648 and RA 2340 does
not partake of the nature of an exemption, but is a "commutative tax". This contention was raised but was not upheld
in Cagayan Electric Power and Light Co. Inc. vs. Commissioner of Internal Revenue 15 wherein the Supreme Court stated:

. . . Congress could impair petitioner's legislative franchise by making it liable for income tax from
which heretofore it was exempted by virtue of the exemption provided for in section 3 of its franchise .
..

. . . Republic Act No. 5431, in amending section 24 of the Tax Code by subjecting to income tax all
corporate tax payers not expressly exempted therein and in section 27 of the Code, had the effect of
withdrawing petitioner's exemption from income tax . . .

133
Private respondent's invocation of the non-impairment clause of the Constitution is accordingly unavailing. The LGC was
enacted in pursuance of the constitutional policy to ensure autonomy to local governments 16 and to enable them to
attain fullest development as self-reliant communities. 17 Thus in Mactan Cebu International Airport Authority
vs. Marcos, supra, this Court pointed out, in upholding the withdrawal of the real estate tax exemption previously
enjoyed by the Mactan Cebu International Airport Authority, as follows:

Note that as reproduced in Section 234 (a) the phrase ''and any government-owned or controlled
corporation so exempt by its charter" was excluded. The justification for this restricted exemption in
Section 234(a) seems obvious: to limit further tax exemption privileges, especially in light of the
general provision on withdrawal of tax exemption privileges in Section 193 and the special provision
on withdrawal of exemption from payment of real property taxes in the last paragraph of Section 234.
These policy considerations are consistent with the State policy to ensure autonomy to local
governments and the objective of the LGC that they enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant communities and make them effective
partners in the attainment of national goals. The power to tax is the most effective instrument to raise
needed revenues to finance and support myriad activities of local government units for the delivery of
basic services essential to the promotion of the general welfare and the enhancement of peace,
progress, and prosperity of the people. It may also be relevant to recall that the original reasons for
the withdrawal of tax exemption privileges granted to government-owned or controlled corporations
and all other units of government were that such privilege resulted in serious tax base erosion and
distortions in the tax treatment of similarly situated enterprises, and there was a need for these
entities to share in the requirements of development, fiscal or otherwise, by paying the taxes and
other charges due from them. 18

The Court therein concluded that:

nothing can prevent Congress from decreeing that even instrumentalities or agencies of the
Government performing governmental functions may be subject to tax. Where it is done precisely to
fulfill a constitutional mandate and national policy, no one can doubt its wisdom. 19

The power to tax is primarily vested in Congress. However, in our jurisdiction, it may be exercised by local legislative
bodies, no longer merely by virtue of a valid delegation as before, but pursuant to direct authority conferred by Section
5, Article X of the Constitution. 20 Thus Article X, Section 5 of the Constitution reads:

Sec. 5 — Each Local Government unit shall have the power to create its own sources of revenue and to
levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide,
consistent with the basic policy of local autonomy. Such taxes, fees and charges shall accrue
exclusively to the Local Governments.

The important legal effect of Section 5 is that henceforth, in interpreting statutory provision on municipal fiscal
powers, doubts will have to resolved in favor of municipal corporations. 21

There is further basis for tire conclusion that the non-impairment of contract clause cannot be invoked to uphold
Meralco's exemption from the local tax. Escudero Electric Co. was originally given the legislative franchise under Act.
3648 to operate an electric light and power system in the City of San Pablo and nearby municipalities. The term of the
franchise under Act. No. 3648 is a period of fifty years from the Act's approval in 1929. The said law provided that the
franchise is granted upon the condition that it shall be subject to amendment, or repeal by the Congress of the United
States. 22 Under the 1935. 23 the 1973 24 and the 1987 25 Constitutions, no franchise or right shall be granted except
under the condition that it shall be subject to amendment, alteration or repeal by the National Assembly when the public
interest so requires. With or without the reservation clause, franchises are subject to alterations through a reasonable
exercise of the police power; they are also subject to alteration by the power to tax, which like police power cannot be
contracted away. 26

Finally, while the matter is not of controlling significance, the Court notes that whereas the original Escudero franchise
exempted the franchise holder from all taxes levied or collected "now or in the future" 27 this phrase is noticeably
omitted in the counterpart provision of P.D. 551; that said omission is intended not to foreclose future taxes may
reasonably be deduced by statutory construction.

WHEREFORE, the instant petition is GRANTED. The decision of the Regional Trial Court of San Pablo City, appealed from
is hereby reversed and set aside and the complaint of MERALCO is hereby DISMISSED.

No pronouncement as to costs.

SO ORDERED.

Romero, Vitug, Panganiban and Purisima, JJ., concur.

l. JAVIER VS COMELEC (GR NO. 215847, JANUARY 12, 2016)

134
G.R. No. 215847

GOV. EXEQUIEL B. JAVIER, Petitioner, 

vs.
COMMISSION ON ELECTIONS, CORNELIO P. ALDON, and RAYMUNDO T. ROQUERO, Respondents.

DECISION

BRION, J.:

This is a petition for certiorari under Rule 65 in relation to Rule 64 of the Rules of Court, filed to challenge the January
12, 2015 per curiam order of the Commission on Elections (COMELEC/The Commission) en banc in SPA No. 13-254
(DC).1 The Commission granted the petition to disqualify the petitioner Exequiel Javier and to annul his proclamation as
the duly elected governor of Antique.

THE ANTECEDENTS

On December 3, 1985, the Batasang Pambansa enacted the Omnibus Election Code (Election Code).2 Section 261(d)
and (e) of this Code prescribe the following elements of coercion as an election offense:

Section 261. Prohibited Acts. - The following shall be guilty of an election offense: x x x

(d) Coercion of subordinates. -

(1) Any public officer, or any officer of any public or private corporation or association, or any head,
superior, or administrator of any religious organization, or any employer or landowner who coerces or
intimidates or compels, or in any manner influence, directly or indirectly, any of his
subordinates or members or parishioners or employees or house helpers, tenants, overseers, farm
helpers, tillers, or lease holders to aid, campaign or vote for or against any candidate or any
aspirant for the nomination or selection of candidates.

(2) Any public officer or any officer of any commercial, industrial, agricultural, economic or social
enterprise or public or private corporation or association, or any head, superior or administrator of any
religious organization, or any employer or landowner who dismisses or threatens to dismiss,
punishes or threatens to punish by reducing his salary, wage or compensation, or by demotion,
transfer, suspension, separation, excommunication, ejectment, or causing him annoyance in the
performance of his job or in his membership, any subordinate member or affiliate, parishioner,
employee or house helper, tenant, overseer, farm helper, tiller, or lease holder, for disobeying or not
complying with any of the acts ordered by the former to aid, campaign or vote for or against any
candidate, or any aspirant for the nomination or selection of candidates.

(e) Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion. - Any person who, directly or
indirectly, threatens, intimidates or actually causes, inflicts or produces any violence, injury, punishment, damage, loss
or disadvantage upon any person or persons or that of the immediate members of his family, his honor or property, or
uses any fraudulent device or scheme to compel or induce the registration or refraining from registration of any voter, or
the participation in a campaign or refraining or desistance from any campaign, or the casting of any vote or omission to
vote, or any promise of such registration, campaign, vote, or omission therefrom. (emphases supplied)

Coercion, as an election offense, is punishable by imprisonment of not less than one year but not more than six
years.3 Notably, Section 68 of the Election Code provides that the Commission may administratively disqualify a
candidate who violates Section 261(d) or (e).

On February 20, 1995, Congress enacted Republic Act No. 7890 amending the definition of Grave Coercion under the
Revised Penal Code.4 It increased the penalty for coercion committed in violation of a person’s right to suffrage
to prision mayor. Further, Section 3 of R.A. 7890 expressly repealed Section 26, paragraphs (d)(1) and (2) of the Election
Code.

On April 3, 2012, COMELEC issued Resolution No. 93855 fixing the calendar of activities for the May 2013 elections.
The resolution set the election period from January 13, 2013 until June 12, 2013.

On September 3, 2012, Valderrama Municipal Vice-Mayor Christopher B. Maguad filed an administrative complaint for
Gross Misconduct/Dereliction of Duty and Abuse of Authority against Valderrama Mayor Mary Joyce U. Roquero (Mayor
Roquero). This complaint was docketed as Administrative Case No. 05-2012.

On November 9, 2012, the Sangguniang Panlalawigan (SP) issued Resolution No. 291-2012 recommending to Antique
Governor Exequiel Javier (Gov. Javier) the preventive suspension of Mayor Roquero.

On November 21, 2012, Mayor Roquero filed a petition for certiorari and prohibition with prayer for the issuance of a
temporary restraining order (TRO) before the Regional Trial Court (RTC), Branch 12, Antique, against Gov. Javier and the

135
members of the SP to restrain them from proceeding with Administrative Case No. 05-2012. The petition was docketed
as Special Civil Action No. 12-11-86.

The case was re-raffled to the RTC, Branch 11 which issued a writ of preliminary injunction.

Gov. Javier, Vice-Governor Dimamay, and the members of the SP filed a petition for certiorari with urgent prayer for TRO
and preliminary injunction before the CA, docketed as CA-G.R. SP-07307.

On December 18, 2012, COMELEC issued Resolution No. 95816 prohibiting any public official from suspending any
elective provincial, city, municipal, or barangay officer during the election period for the May 13, 2013 elections. This
resolution implements Section 261 (x)7 of the Election Code.

On January 15, 2013, the CA issued a TRO in CA-G.R. SP-07307.

On January 16, 2013, the RTC, Branch 11 promulgated its judgment granting certiorari and prohibition. It ordered the SP
to cease and desist from further proceeding with Administrative Case No. 05-2012. It likewise ordered Gov. Javier to
refrain from implementing SP Resolution No. 291-2012 and from preventively suspending Mayor Roquero.

On January 23, 2013, Gov. Javier issued Executive Order No. 003, S. 2013, preventively suspending Mayor Roquero
for thirty (30) days.

On February 7, 2013, the SP of Antique issued a decision finding Mayor Roquero guilty of Grave Misconduct in
relation with Section 3(e) of R. A. 3019, the Anti-Graft and Corrupt Practices Act, and Grave Abuse of
Authority in relation with Section 5(e) of R.A. No. 6713. The SP suspended her for four (4) months.

Mayor Roquero filed an Election Offense complaint against Gov. Javier for violating Section 261(x) of the Election Code.
The case was filed before the COMELEC Law Department and docketed as Election Offense Case (EOC) No. 13-025.

Meanwhile (or on March 15, 2013), the CA granted the writ of preliminary injunction filed by Gov. Javier, et al., in CA-G.R.
SP-07307. It enjoined Judge Nery Duremdes of the RTC, Branch 11 from conducting further proceedings in SPL Civil
Action No. 12-11-86.

On March 22, 2013, private respondents Cornelio P. Aldon (Aldon) and Raymundo T. Roquero (Roquero) also filed a
petition for disqualification before the Commission against Gov. Javier, Vice-Governor Rosie A. Dimamay, and the other
members of the SP. The case was docketed as COMELEC Special Action (SPA) No. 13-254 (DC.)

Aldon and Roquero sought to disqualify Gov. Javier and the other incumbent officials from running in the 2013 elections
on the ground that the latter committed the election offenses of Coercion of Subordinates [Sec. 261(d)] and Threats,
Intimidation, Terrorism x x x or Other Forms of Coercion [Sec. 261(e)] by suspending Mayor Roquero. They
alleged that the suspension was political harassment calculated to intimidate the Roqueros into backing out of the 2013
elections.8

On April 29, 2013, the Clerk of the Commission conducted a conference hearing between the parties.

On April 30, 2013, Gov. Javier (together with the SP Members) filed a motion to dismiss with answer ex abundante ad
cautelam.

After the May 13, 2013 Elections, only Gov. Javier and SP Members Tobias M. Javier, Edgar D. Denosta, Teopisto C.
Estaris, Jr., and Victor R. Condez were proclaimed winners. Hence, the Commission considered the disqualification cases
against the losing candidates moot.

On October 3, 2014, the COMELEC Second Division issued a resolution in SPA No. 13-254 (DC) disqualifying Gov. Javier
and annulling his proclamation as the Governor of Antique. The resolution was penned by Commissioner Elias R. Yusoph.

The COMELEC held that the preventive suspension of Mayor Roquero under Executive Order No. 003 violated the
election period ban because it was not for the purpose of applying the Anti-Graft and Corrupt Practices Act. It also
considered the Commission’s findings in EOC No. 13-025 that there was substantial evidence showing that Gov. Javier
acted in bad faith when he suspended Mayor Roquero as a form of punishment for opposing him. 9

The COMELEC ruled that Gov. Javier’s act of preventively suspending Mayor Roquero during the election period ban fell
within the contemplation of Section 261(d) of the Election Code, which is a ground for disqualification under Section 68.
It held that while Section 261(d) of the Election Code was repealed by Republic Act No. 7890, it did not remove coercion
"as a ground per se for disqualification under [Section] 68." In fact, R.A. 7890 made Coercion (an election offense) a
felony with a higher penalty.10 The COMELEC added that the general repealing clause of R.A. No. 7890 cannot impliedly
repeal Section 68 because the latter was "not absolutely and irreconcilably incompatible with Article 286." 11

Commissioner Luie Tito F. Guia dissented from the resolution. Commissioner Guia reasoned that the legal basis to
dismiss Gov. Javier no longer exists because Section 3 of Republic Act No. 7890 had repealed Section 261(d) of the
Election Code. Commissioner Arthur D. Lim took no part in the vote because he did not participate in the deliberations.

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With the votes tied at 1-1-1 (one voted to grant, one dissenting, and one not participating), the case failed to obtain the
necessary majority. Consequently on October 14, 2014, the COMELEC Second Division issued an order elevating the
case to the en banc for its disposition.12

The Commission en banc agreed, as a matter of internal arrangement, to submit their respective opinions explaining
their respective votes or their concurrence with either Commissioner Yusoph or Commissioner Guia.

Three (3) Commissioners concurred with Commissioner Yusoph: Chairman Sixto Brillantes, Jr., Commissioner Lucenito
Tagle, and Commissioner Arthur Lim. Commissioner Christian Robert Lim joined Commissioner Guia’s dissent.
Commissioner Al A. Parreño did not participate in the vote as he was away on official business. Thus, the vote was 4-2-1
in favor of disqualification; in a per curiam order promulgated on January 12, 2015, the Commission en banc disqualified
Gov. Javier and annulled his proclamation as the governor of Antique.

On January 20, 2015, Gov. Javier filed the present petition for certiorari under Rule 65 in relation with Rule 64 of the
Rules of Court.

THE PETITION

The petitioner argues that the Commission en banc committed grave abuse of discretion because: (1) its January 12,
2015 order was arrived at on the basis of an "internal arrangement; and (2) the order did not obtain a majority vote
because Commissioner Arthur Lim should not have been allowed to participate.

The petitioner also asserts that the Commission erred in ruling that R.A. 7890 did not remove Section 261(d) of the
Election Code as a ground for administrative disqualification. Finally, the petitioner maintains that the Commission
unconstitutionally set the Election Period for the May 13, 2013 elections in violation of Article IX-C, Section 9 of the
Constitution, Sec. 62 (c) of the Local Government Code, and Section 8 of Republic Act No. 7056. 13

In its comment on the petition, COMELEC, through the Office of the Solicitor General (OSG), counters that it did not
abuse its discretion in issuing the January 12, 2015 order disqualifying Gov. Javier. The Commission insists that the
procedure observed during the proceedings was not infirm and that there was no legal impediment for Commissioner
Arthur Lim to participate in the en banc vote.

On the alleged errors of law, the Commission insists that there was legal basis to disqualify Gov. Javier under both
Sections 261 (d) and (e) of the Election Code; the repeal of Section 261(d) by R.A. 7890 did not ipso facto remove
coercion as a ground for disqualification under Section 68 of the Election Code. It added that Section 261(e), on the
other hand, has not been repealed, either expressly or impliedly.

Finally, the Commission asserts that COMELEC Resolution No. 9581 fixing the date of the election period is expressly
authorized by Article IX, Section 9 of the Constitution and Section 8 of Republic Act No. 7056.

Based on these submissions, the following issues now confront the Court:

I.

Whether the Commission gravely abused its discretion when it issued Resolution No. 9581 fixing the 2013 election
period from January 13, 2013 until June 12, 2013, for the purpose of determining administrative and criminal liability for
election offenses.

II.

Whether the Commission erred in ruling that R.A. No. 7890 did not remove coercion as a ground for disqualification
under Section 68 of the Election Code.

III.

Whether the Commission en banc committed grave abuse of discretion in issuing its Order dated January 12, 2015,
disqualifying Gov. Javier and annulling his proclamation as the governor of Antique.

OUR RULING:

After due consideration, we resolve to grant the petition.

The COMELEC is expressly authorized to fix a different date of the election period.

The petitioner contends that the election period for the reckoning of administrative and criminal liabilities under election
laws should always be the same-90 days before and 30 days after an election-fixed in Article IX-C, Section 9 of the
Constitution and Section 8 of Republic Act No. 7056.14 He argues that the Commission’s authority to fix the pre-election
period refers only to the period needed to properly administer and conduct orderly elections. The petitioner argues that
by extending the period for incurring criminal liability beyond the 90-day period, the Commission encroached on the
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legislature’s prerogative to impute criminal and administrative liability on mala prohibita acts. Therefore, COMELEC
Resolution Nos. 9385 and 9581 were issued ultra vires.

We do not find this argument meritorious.

No less than the Constitution authorizes the Commission to fix the dates of the election period. Article IX-C, Section 9
provides:

Section 9. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety
days before the day of election and shall end thirty days thereafter. 15

Congress, through the Election Code, explicitly recognizes this authority:

Sec. 3. Election and campaign periods. – Unless otherwise fixed in special cases by the Commission on
Elections, which hereinafter shall be referred to as the Commission, the election period shall commence ninety days
before the day of the election and shall end thirty days thereafter. 16 (emphases supplied)

Evidently, the 120-day period is merely the default election period. The Commission is not precluded from fixing the
length and the starting date of the election period to ensure free, orderly, honest, peaceful, and credible elections. This
is not merely a statutory but a constitutionally granted power of the Commission.

Contrary to the petitioner’s contention, the Commission’s act of fixing the election period does not amount to an
encroachment on legislative prerogative. The Commission did not prescribe or define the elements of election offenses.
Congress already defined them through the Omnibus Election Code, the Fair Elections Act, and other pertinent election
laws.

As defined by Congress, some election offenses and prohibited acts can only be committed during the election period.
An element of these offenses (i.e., that it be committed during the election period) is variable, as election periods are
not affixed to a specific and permanent date. Nevertheless, the definition of the offense is already complete. By fixing
the date of the election period, the Commission did not change what the offense is or how it is committed. There is thus
no intrusion into the legislative sphere.

There is also no merit in the petitioner’s argument that the extended election period only applies to pre-election
activities other than the determination of administrative or criminal liability for violating election laws. Neither the law
nor the Constitution authorizes the use of two distinct election periods for the same election. The law does not
distinguish between election offenses and other pre-election activities in terms of the applicable election period. Where
the law does not distinguish, neither should this Court.

The Alleged Lack of Due Process

We find the petitioner’s claim – that the Commission committed grave abuse of discretion since there was no preliminary
investigation as required under Section 265 of the Omnibus Election Code – to be misplaced. 17

SPA No. 13-254 was an administrative proceeding for disqualification and not a criminal prosecution of an election
offense. The due process requirements and the procedures for these are not the same. Section 265 of the Election Code
only applies to criminal prosecutions. Disqualification cases are summary in nature and governed by Rule 25 of the
COMELEC Rules of Procedure.

There is likewise no merit in the petitioner’s allegation that he was denied due process because the Commission
adjudicated the issue without conducting any subsequent hearings and without requiring the submission of position
papers or memoranda, notarized witness affidavits, or other documentary evidence aside from the annexes included in
the petition and the answer.

Administrative due process cannot be fully equated with due process in its strict judicial sense. 18 A formal hearing is not
always necessary and the observance of technical rules of procedure is not strictly applied in administrative
proceedings.19 The essence of administrative due process is the right to be heard and to be given an opportunity to
explain one’s side.20 Where the Commission hears both sides and considers their contentions, the requirements of
administrative due process are complied with.

As we held in Lanot v. Commission on Elections:21

The electoral aspect of a disqualification case determines whether the offender should be disqualified from being a
candidate or from holding office. Proceedings are summary in character and require only clear preponderance of
evidence. An erring candidate may be disqualified even without prior determination of probable cause in a preliminary
investigation. The electoral aspect may proceed independently of the criminal aspect, and vice versa.

The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for an
election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether probable
cause exists. If there is probable cause, the COMELEC, through its Law Department, files the criminal information before
the proper court. Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable

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doubt to convict. A criminal conviction shall result in the disqualification of the offender, which may even include
disqualification from holding a future public office.

Commissioner Arthur Lim’s Participation in the En Banc Voting

The petitioner further argues that the Commission committed grave abuse of discretion by allowing Commissioner
Arthur D. Lim to participate in the proceedings before the Commission en banc. The petitioner maintains that because
Commissioner Arthur Lim took no part in the proceedings before the COMELEC Second Division, then he should have
inhibited from the en banc proceedings pursuant to the ruling in Estrella v. COMELEC.22 If we disregard Commissioner
Arthur Lim’s vote, then the Commission would have failed to attain the necessary majority vote of all the members of
the Commission.

The petitioner’s reliance on Estrella is misplaced because the facts of this case are different from those of the present
case. Estrella involved two related election cases between the same parties: an election protest and an action
for certiorari. One party moved for Commissioner Lantion’s inhibition which the Commission denied. However,
Commissioner Lantion later inhibited himself from the certiorari proceeding and was substituted by another
Commissioner.23 The substitution order was also adopted in the election protest case. When the election protest was
elevated to the COMELEC en banc, Commissioner Lantion participated in the deliberations and voted despite his prior
inhibition. This Court granted certiorari and held that Commissioner Lantion’s piecemeal voluntary inhibition was illegal
and unethical.

In the present case, Commissioner Arthur Lim did not inhibit from the proceedings. If the Commissioner had inhibited,
there would have been a need to replace him pursuant to Rule 3, Section 6 of the COMELEC Rules of Procedure 24 (as
what happened in Estrella where there was an issuance of an order designating Commissioner Borra as Commissioner
Lantion’s substitute). Commissioner Arthur Lim only abstained from voting; he did not participate in the deliberations.
When the Commission en banc, as a matter of internal arrangement, agreed among themselves to submit their own
opinion explaining their respective vote or merely their concurrence with either Commissioner Elias R. Yusoph or
Commissioner Luie Tito F. Guia’s position on the matter, no legal or ethical impediment existed preventing him
(Commissioner Arthur Lim) from subsequently participating in the deliberations and from casting his vote.

COMELEC’s Internal Arrangement

The petitioner also maintains that the Commission gravely abused its discretion when it set aside its own rules and
resolved the case through an "internal arrangement." He submits that the Commission should have waited for the
assigned ponente to write an opinion before agreeing to vote based on the positions of Commissioner Yusoph and
Commissioner Guia. The petitioner also claims that the assailed Order is a "midnight decision" and cites the absence of a
promulgation date on the front page and of a certification signed by the Chairman as procedural infirmities.

The petitioner clearly refers to Rule 18 of the COMELEC Rules of Procedure which states:

Part IV
Rule 18 – Decisions

Sec. 1 Procedure in Making Decisions. – The conclusions of the Commission in any case submitted to it for decision en
banc or in Division shall be reached in consultation before the case is assigned by raffle to a Member for the writing
of the opinion of the Commission or the Division and a certification to this effect signed by the Chairman or the Presiding
Commissioner, as the case may be, shall be incorporated in the decision. Any member who took no part, dissented, or
abstained from a decision or resolution must state the reason therefor.

Every decision shall express therein clearly and distinctly the facts and the law on which it is
based. (emphasis supplied)

To our mind, the essence of this provision is: (1) that decisions of the Commission, whether in Division or en banc, must
be reached in consultation; and (2) that the decisions must state their factual and legal bases. Moreover, Rule 18,
Section 1 must be read together with the other provisions of the COMELEC Rules of Procedure, particularly the following
related portions:

Rule 1 – Introductory Provisions

Sec. 3. Construction – These rules shall be liberally construed in order to promote the effective and efficient
implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and credible elections and to
achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought before
the Commission.

Sec. 4. Suspension of the Rules – In the interest of justice and in order to obtain speedy disposition of all
matters pending before the Commission, these rules or any portion thereof may be suspended by the Commission.

The COMELEC Rules specifically authorize the Commission to suspend the strict application of its rules in the interest of
justice and the speedy disposition of cases. In this case, the Commission suspended Rule 18, Section 1. The Commission,
as a body, dispensed with the preparation of another ponencia and opted to vote on the legal positions of
Commissioners Yusoph and Guia. Nevertheless, the decision was evidently reached through consultation. Then

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Chairman Sixto Brillantes, Jr., Commissioner Lucenito Tagle, and Commissioner Arthur Lim concurred with Commissioner
Yusoph. Commissioner Christian Robert Lim joined Commissioner Guia’s dissent. Chairman Brillantes, Jr. and
Commissioner Arthur Lim also wrote separate concurring opinions. The Court does not see any arbitrariness or infirmity
in this internal arrangement that would have deprived the petitioner of due process.

Moreover, the Commission resorted to this arrangement because, as the petitioner pointed out, three Commissioners
were retiring soon. There was a need to resolve the cases because the impending vacancies would have resulted in
further delay. Contrary to the petitioner’s insinuations, "midnight decisions" are not illegal. Judges and other quasi-
judicial officers cannot sit back, relax, and refuse to do their work just because they are nearing retirement or are near
the end of their term. As civil servants, they are expected to diligently carry out their duties until their separation from
service. Thus, the Commission’s suspension of its rules and use of an internal arrangement to expedite its internal
proceedings is not at all unusual in collegial bodies. We note that the vote was divided and dissents were filed, thereby
indicating the absence of any malicious departure from the usual procedures in arriving at the Commission’s ruling on
the case.

Absence of a Promulgated Date and Failure to Serve Advance Copy

With respect to the absence of a promulgation date on the first page of the assailed order, this Court directs the
petitioner’s attention to the last page stating that the Order was "Given this 12th day of January 2015, Manila,
Philippines.”25 Promulgation is the process by which a decision is published, officially announced, made known to the
public, or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel. 26 The order was
evidently promulgated on January 12, 2015.

The Commission does not deny that it failed to serve an advance copy of the order to the petitioner as required under
Rule 18, Section 527 of its Rules. But as we previously held in the cases of Lindo v. COMELEC28 and Pimping v.
COMELEC,29 this kind of procedural lapse does not affect the validity of the order and is insufficient to warrant the grant
of a writ of certiorari in the absence of any grave abuse of discretion prejudicing the rights of the parties.

Repeal of Section 261 (d) of Batas Pambansa Blg. 881 by Republic Act No. 7890

No less than the Constitution empowers the Commission to decide all questions affecting elections except those
involving the right to vote. 30 It is the sole arbiter of all issues involving elections. Hence, unless tainted with grave abuse
of discretion, simple errors of judgment committed by COMELEC cannot be reviewed even by this Court. 31

An error of judgment is one that the court may commit in the exercise of its jurisdiction; 32 they only involve errors in the
court or tribunal’s appreciation of the facts and the law. 33 An error of jurisdiction is one where the act complained of was
issued by the court without or in excess of its jurisdiction, or with grave abuse of discretion tantamount to lack or excess
of jurisdiction.34

A review of the October 3, 2014 COMELEC Second Division resolution (penned by Commissioner Yusoph), however,
showed that the main thrust of this resolution ‒to which four Commissioners concurred in when the case was elevated to
the en banc – is faulty.35 It considered the repeal of Section 261(d) by R.A. No.7890 to be an implied one, which is
contrary to the wordings of R.A. 7890.

For clarity, we reproduce the pertinent provisions of R.A. No. 7890, thus:

SECTION 1. Article 286, Section Three, Chapter Two, Title Nine of Act No. 3815, as amended, is hereby further amended
to read as follows:

“ART. 286. Grave Coercions. – The penalty of prision correccional and a fine not exceeding Six thousand pesos shall be
imposed upon any person who, without any authority of law, shall, by means of violence, threats or intimidation, prevent
another from doing something not prohibited by law, or compel him to do something against his will, whether it be right
or wrong.

“If the coercion be committed in violation of the exercise of the right of suffrage, or for the purpose of compelling
another to perform any religious act, to prevent him from exercising such right or from so doing such act, the penalty
next higher in degree shall be imposed."

SEC. 2. Section 261, Paragraphs (d)(1) and (2), Article XXII of Batas Pambansa Blg. 881 is hereby repealed.

SEC. 3. All other election laws, decrees, executive orders rules and regulations, or parts thereof inconsistent with the
provisions of this Act are hereby repealed.

xxxx

A repeal may be express or implied.36 An express repeal is one wherein a statute declares, usually in its repealing
clause, that a particular and specific law, identified by its number or title, is repealed. 37 An implied repeal, on the other
hand, transpires when a substantial conflict exists between the new and the prior laws. In the absence of an express
repeal, a subsequent law cannot be construed as repealing a prior law unless an irreconcilable inconsistency and
repugnancy exist in the terms of the new and the old laws.38

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In the present case, it is clear that R.A. No. 7890 expressly repealed Section 261, paragraphs (d)(1) and (2) of the
Omnibus Election Code. The COMELEC Second Division’s October 3, 2014 resolution, however, treated this repeal as
merely an implied one. Commissioner Yusoph reasoned out as follows:

Moreover, the general repealing clause in Section 3 of RA 7890 cannot impliedly repeal Section 68 because the latter
is not absolutely and irreconcilably incompatible with Article 286, as amended by RA 7890. Meaning, a case for
disqualification due to coercion under Section 68 can very well stand apart from the criminal case for coercion under
Article 286, as amended. This is so because Section 68 involves an administrative proceeding intended to disqualify a
candidate whereas Article 286, supra, involves a criminal proceeding intended to penalize coercion. Both laws, therefore,
can be given effect without nullifying the other, hence the inapplicability of implied repeal.

To firm up our stance against implied repeal of coercion as a ground for disqualification, the following pronouncements
of the Supreme Court are guiding:

“Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject matter; they
are so clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized; and both
cannot be given effect, that is, that one law cannot be enforced without nullifying the other."

“Well-settled is the rule is statutory construction that implied repeals are disfavored. In order to effect a repeal by
implication, the latter statute must be so irreconcilably inconsistent and repugnant with the existing law that they
cannot be made to reconcile and stand together. The clearest case possible must be made before the inference
of implied repeal may be drawn, for inconsistency is never presumed. x x x x" 39

We point out that this resolution and the dissenting opinion of Commissioner Guia became the basis of the internal
arrangement reached upon by the Commission en banc whereby the commissioners agreed to submit their respective
opinions explaining their votes or their concurrence with either Commissioner Yusoph or Guia.

As earlier stated, the vote was 4-2-1 in favor of disqualification; in a per curiam order promulgated on January 12, 2015,
the Commission en banc disqualified Gov. Javier and annulled his proclamation as the governor of Antique. Chairman
Brillantes and Commissioner Arthur Lim wrote their own opinions concurring with the position of Commissioner Yusoph,
while Commissioner Tagle submitted his vote concurring with the opinions of Commissioner Yusoph and Chairman
Brillantes.

In his Separate Opinion, Chairman Brillantes agreed with Commissioner Yusoph that the repeal of Section 261(d) by R.A.
No. 7890 was merely implied, and made the following disquisition:

xxxx

The Supreme Court, in a long line of cases, has constantly disfavored and struck down the use of repeal by implication.
Pursuant to jurisprudence, well entrenched is the rule that an implied repeal is disfavored. The apparently conflicting
provisions of a law or two laws should be harmonized as much as possible, so that each shall be effective. For a law to
operate to repeal another law, the two laws must actually be inconsistent. The former must be so repugnant as to be
irreconcilable with the latter act. Stated plainly, a petition for disqualification on the ground of coercion shall be taken
differently and distinctly from coercion punishable under the RPC for the two can very well stand independently from
each other. x x x Therefore, unless proven that the two are inconsistent and would render futile the application and
enforcement of the other, only then that a repeal by implication will be preferred. x x x x 40

A law that has been expressly repealed ceases to exist and becomes inoperative from the moment the repealing law
becomes effective.41 The discussion on implied repeals by the Yusoph resolution, (and the concurring opinion of
Chairman Brillantes, Jr.), including the concomitant discussions on the absence of irreconcilable provisions between the
two laws, were thus misplaced. The harmonization of laws can only be had when the repeal is implied, not when it is
express, as in this case.

The COMELEC’s reasoning that coercion remains to be a ground for disqualification under Section 68 of the Election
Code despite the passage of R.A. No. 7890 is erroneous. To the point of our being repetitive, R.A. No. 7890 expressly
repealed Section 261 d(1) and (2) of Batas Pambansa Blg. 881, rendering these provisions inoperative. The effect of this
repeal is to remove Section 261(d) from among those listed as ground for disqualification under Section 68 of the
Omnibus Election Code.

In his Memorandum/Concurring Opinion, Commissioner Arthur Lim stated that the petition for disqualification is
anchored not only on violation of Section 261 (d), but also on the violation of Section 261(e) in relation to Section 68 of
the OEC. We point out, however, that the COMELEC Second Division’s October 3, 2014 resolution in SPA No. 13-
254 (disqualifying Gov. Javier and annulling his proclamation as the Governor of Antique) was premised solely on
violation of Section 261(d) of the OEC; it did not find that Gov. Javier – even by substantial evidence - violated the
provisions of Section 261(e). For clarity and accuracy, we quote the pertinent portions of the COMELEC’s (Second
Division) October 3, 2014 resolution:

Ineluctably, the act of Gov. Javier in preventively suspending Mayor Roquero during the Election period ban falls within
the contemplation of Section 261(d) of the Election Code which is a ground for disqualification under Section 68, Election
Code. That is, Gov. Javier issued Executive Order No. 003 suspending Mayor Roquero to coerce, intimidate, compel, or
influence the latter to collaborate with or campaign for the former, or to punish the latter for having manifested political
opposition against the former. For that, he must be disqualified. 42

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With the express repeal of Section 261(d), the basis for disqualifying Javier no longer existed. As we held in Jalosjos, Jr. v.
Commission on Elections,43 [t]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in
Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. They
are criminal and not administrative in nature. 44 Pursuant to sections 265 and 268 of the Omnibus Election Code, the
power of the COMELEC is confined to the conduct of preliminary investigation on the alleged election offenses for the
purpose of prosecuting the alleged offenders before the regular courts of justice. 45

There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, 46 where power is exercised arbitrarily or in a
despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty, or to
virtual refusal to perform the duty enjoined, or to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion and hostility. 47

To our mind, the COMELEC gravely abused its discretion when it disqualified Gov. Javier based on a provision of law that
had already been expressly repealed. Its stubborn insistence that R.A. No. 7890 merely impliedly repealed Section 261
(d) despite the clear wordings of the law, amounted to an arbitrary and whimsical exercise of judgment.

WHEREFORE, premises considered, we hereby GRANT the petition and SET ASIDE the January 12, 2015 per

curiam order of the Commission on Elections en banc in SPA No. 13-254 (DC).

SO ORDERED.

ARTURO D. BRION
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

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