G.R. No.

L-2348 February 27, 1950

GREGORIO PERFECTO, plaintiff-appellee,
vs.
BIBIANO MEER, Collector of Internal Revenue, defendant-appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Francisco Carreon for oppositor and appellant.
Gregorio Perfecto in his own behalf.
BENGZON, J.:
In April, 1947 the Collector of Internal Revenue required Mr. Justice Gregorio Perfecto to pay income tax upon
his salary as member of this Court during the year 1946. After paying the amount (P802), he instituted this
action in the Manila Court of First Instance contending that the assessment was illegal, his salary not being
taxable for the reason that imposition of taxes thereon would reduce it in violation of the Constitution.
The Manila judge upheld his contention, and required the refund of the amount collected. The defendant
appealed.
The death of Mr. Justice Perfecto has freed us from the embarrassment of passing upon the claim of a
colleague. Still, as the outcome indirectly affects all the members of the Court, consideration of the matter is
not without its vexing feature. Yet adjudication may not be declined, because (a) we are not legally
disqualified; (b) jurisdiction may not be renounced, ad it is the defendant who appeals to this Court, and there
is no other tribunal to which the controversy may be referred; (c) supreme courts in the United States have
decided similar disputes relating to themselves; (d) the question touches all the members of the judiciary from
top to bottom; and (e) the issue involves the right of other constitutional officers whose compensation is
equally protected by the Constitution, for instance, the President, the Auditor-General and the members of the
Commission on Elections. Anyway the subject has been thoroughly discussed in many American lawsuits and
opinions, and we shall hardly do nothing more than to borrow therefrom and to compare their conclusions to
local conditions. There shall be little occasion to formulate new propositions, for the situation is not
unprecedented.

Our Constitution provides in its Article VIII, section 9, that the members of the Supreme Court and all judges of
inferior courts "shall receive such compensation as may be fixed by law, which shall not be diminished during
their continuance in office." It also provides that "until Congress shall provide otherwise, the Chief Justice of
the Supreme Court shall receive an annual compensation of sixteen thousand pesos". When in 1945 Mr.
Justice Perfecto assumed office, Congress had not "provided otherwise", by fixing a different salary for
associate justices. He received salary at the rate provided by the Constitution, i.e., fifteen thousand pesos a
year.
Now, does the imposition of an income tax upon this salary in 1946 amount to a diminution thereof?.

A note found at page 534 of volume 11 of the American Law Reports answers the question in the affirmative. It
says:

Where the Constitution of a state provides that the salaries of its judicial officers shall not be dismissed during
their continuance in office, it had been held that the state legislature cannot impose a tax upon the
compensation paid to the judges of its court. New Orleans v. Lea (1859) 14 La. Ann. 194; Opinion of Attorney-
General if N. C. (1856) 48 N. C. (3 Jones, L.) Appx. 1; Re Taxation of Salaries of Judges (1902) 131 N. C. 692, 42 S.
E. 970; Com. ex. rel. Hepburn v. Mann (1843) 5 Watts & S,. (Pa.) 403 [but see to the contrary the earlier and
much criticized case of Northumberland county v. Chapman (1829) 2 Rawle (Pa.) 73]*
A different rule prevails in Wisconsin, according to the same annotation. Another state holding the contrary
view is Missouri.

The Constitution of the United States, likes ours, forbids the diminution of the compensation of Judges of the
Supreme Court and of inferior courts. The Federal Governments has an income tax law. Does it embrace the
salaries of federal judges? In answering this question, we should consider four periods:

First period. No attempts was made to tax the compensation of Federal judges up to 1862 1.

Second period. 1862-1918. In July, 1862, a statute was passed subjecting the salaries of "civil officers of the
United States" to an income tax of three per cent. Revenue officers, construed it as including the compensation
of all judges; but Chief Justice Taney, speaking for the judiciary, wrote to the Secretary of the Treasury a letter
of protest saying, among other things:

The act in question, as you interpret it, diminishes the compensation of every judge 3 per cent, and if it can be
diminished to that extent by the name of a tax, it may, in the same way, be reduced from time to time, at the
pleasure of the legislature.

The judiciary is one of the three great departments of the government, created and established by the
Constitution. Its duties and powers are specifically set forth, and are of a character that requires it to be
perfectly independent of the two other departments, and in order to place it beyond the reach and above
even the suspicion of any such influence, the power to reduce their compensation is expressly withheld from
Congress, and excepted from their powers of legislation.

Language could not be more plain than that used in the Constitution. It is, moreover, one of its most important
and essential provisions. For the articles which limits the powers of the legislative and executive branches of
the government, and those which provide safeguards for the protection of the citizen in his person and
property, would be of little value without a judiciary to uphold and maintain them, which was free from every
influence, direct and indirect, that might by possibility in times of political excitement warp their judgments.

Upon these grounds I regard an act of Congress retaining in the Treasury a portion of the Compensation of the
judges, as unconstitutional and void2.

The protest was unheeded, although it apparently bore the approval of the whole Supreme Court, that
ordered it printed among its records. But in 1869 Attorney-General Hoar upon the request of the Secretary of
the Treasury rendered an opinion agreeing with the Chief Justice. The collection of the tax was consequently
discontinued and the amounts theretofore received were all refunded. For half a century thereafter judges'
salaries were not taxed as income.3

Third period. 1919-1938. The Federal Income Tax Act of February 24, 1919 expressly provided that taxable
income shall include "the compensation of the judges of the Supreme Court and inferior courts of the United
States". Under such Act, Walter Evans, United States judge since 1899, paid income tax on his salary; and
maintaining that the impost reduced his compensation, he sued to recover the money he had delivered under
protest. He was upheld in 1920 by the Supreme Court in an epoch-making decision.*, explaining the purpose,
history and meaning of the Constitutional provision forbidding impairment of judicial salaries and the effect of
an income tax upon the salary of a judge.
With what purpose does the Constitution provide that the compensation of the judges "shall not be
diminished during their continuance in office"? Is it primarily to benefit the judges, or rather to promote the
public weal by giving them that independence which makes for an impartial and courageous discharge of the
judicial function? Does the provision merely forbid direct diminution, such as expressly reducing the
compensation from a greater to a less sum per year, and thereby leave the way open for indirect, yet effective,
diminution, such as withholding or calling back a part as tax on the whole? Or does it mean that the judge shall
have a sure and continuing right to the compensation, whereon he confidently may rely for his support during
his continuance in office, so that he need have no apprehension lest his situation in this regard may be
changed to his disadvantage?

The Constitution was framed on the fundamental theory that a larger measure of liberty and justice would be
assured by vesting the three powers — the legislative, the executive, and the judicial — in separate
departments, each relatively independent of the others and it was recognized that without this independence
— if it was not made both real and enduring — the separation would fail of its purpose. all agreed that
restraints and checks must be imposed to secure the requisite measure of independence; for otherwise the
legislative department, inherently the strongest, might encroach on or even come to dominate the others, and
the judicial, naturally the weakest, might be dwarf or swayed by the other two, especially by the legislative.

The particular need for making the judiciary independent was elaborately pointed our by Alexander Hamilton
in the Federalist, No. 78, from which we excerpt the following:

xxx xxx xxx

At a later period John Marshall, whose rich experience as lawyer, legislator, and chief justice enable him to
speak as no one else could, tersely said (debates Va. Gonv. 1829-1831, pp. 616, 619): . . . Our courts are the
balance wheel of our whole constitutional system; and our is the only constitutional system so balanced and
controlled. Other constitutional systems lacks complete poise and certainly of operation because they lack the
support and interpretation of authoritative, undisputable courts of law. It is clear beyond all need of exposition
that for the definite maintenance of constitutional understandings it is indispensable, alike for the preservation
of the liberty of the individual and for the preservation of the integrity of the powers of the government, that
there should be some nonpolitical forum in which those understandings can be impartially debated and
determined. That forum our courts supply. There the individual may assert his rights; there the government
must accept definition of its authority. There the individual may challenge the legality of governmental action
and have it adjudged by the test of fundamental principles, and that test the government must abide; there
the government can check the too aggressive self-assertion of the individual and establish its power upon lines
which all can comprehend and heed. The constitutional powers of the courts constitute the ultimate safeguard
alike of individual privilege and of governmental prerogative. It is in this sense that our judiciary is the balance
wheel of our entire system; it is meant to maintain that nice adjustment between individual rights and
governmental powers which constitutes political liberty. Constitutional government in the United States, pp.
17, 142.

Conscious in the nature and scope of the power being vested in the national courts, recognizing that they
would be charge with responsibilities more delicate and important than any ever before confide to judicial
tribunals, and appreciating that they were to be, in the words of George Washington, "the keystone of our
political fabric", the convention with unusual accord incorporated in the Constitution the provision that the
judges "shall hold their offices during good behavior, and shall at stated times receive for their services a
compensation which shall not be diminished during their continuance in office." Can there be any doubt that
the two things thus coupled in place — the clause in respect of tenure during good behaviour and that in
respect of an undiminishable compensation-were equally coupled in purpose? And is it not plain that their
purposes was to invest the judges with an independence in keeping with the delicacy and importance of their
task, and with the imperative need for its impartial and fearless performance? Mr. Hamilton said in explanation
and support of the provision (Federalist No. 79): "Next to permanency in office, nothing can contribute more
to the independence of the judges than a fixed provision for their support. . . . In the general course of human
nature, a power over a man's subsistence amounts to a power over his will.

xxx xxx xxx

These considerations make it very plain, as we think, that the primary purpose of the prohibition against
diminution was not to benefit the judges, but, like the clause in respect of tenure, to attract good and
competent men to the bench, and to promote that independence of action and judgment which is essential to
the maintenance of the guaranties, limitations, and pervading principles of the constitution, and to the
admiration of justice without respect to persons, and with equal concern for the poor and the rich.

xxx xxx xxx

But it is urged that what plaintiff was made to pay back was an income tax, and that a like tax was exacted of
others engaged in private employment.

If the tax in respect of his compensation be prohibited, it can find no justification in the taxation of other
income as to which there is no prohibition, for, of course, doing what the Constitution permits gives no license
to do what it prohibits.

The prohibition is general, contains no excepting words, and appears to be directed against all diminution,
whether for one purpose or another; and the reason for its adoption, as publicly assigned at the time and
commonly accepted ever since, make with impelling force for the conclusion that the fathers of the
Constitution intended to prohibit diminution by taxation as well as otherwise, that they regarded the
independence of the judges as of far greater importance than any revenue that could come from taxing their
salaries. (American law Reports, annotated, Vol. 11, pp. 522-25; Evans vs. Gore, supra.)

In September 1, 1919, Samuel J. Graham assumed office as judge of the Unites States court of claims. His
salary was taxed by virtue of the same time income tax of February 24, 1919. At the time he qualified, a statute
fixed his salary at P7,500. He filed action for reimbursement, submitting the same theory on which Evans v.
Gore had been decided. The Supreme Court of the United States in 1925 reaffirmed that decision. It overruled
the distinction offered by Solicitor-General Beck that Judge Graham took office after the income tax had been
levied on judicial salaries, (Evans qualified before), and that Congress had power "to impose taxes which
should apply to the salaries of Federal judges appointed after the enactment of the taxing statute." (The law
had made no distinction as to judges appointed before or after its passage)

Fourth period. 1939 — Foiled in their previous attempts, the Revenue men persisted, and succeeded in
inserting in the United States Revenue Act of June, 1932 the modified proviso that "gross income" on which
taxes were payable included the compensation "of judges of courts of the United States taking office after June
6, 1932". Joseph W. Woodrough qualified as United States circuit judge on May 1, 1933. His salary as judge was
taxed, and before the Supreme Court of the United States the issue of decrease of remuneration again came
up. That court, however, ruled against him, declaring (in 1939) that Congress had the power to adopt the law.
It said:

The question immediately before us is whether Congress exceeded its constitutional power in providing that
United States judges appointed after the Revenue Act of 1932 shall not enjoy immunity from the incidence of
taxation to which everyone else within the defined classes of income is subjected. Thereby, of course, Congress
has committed itself to the position that a non-discriminatory tax laid generally on net income is not, when
applied to the income of federal judge, a diminution of his salary within the prohibition of Article 3, Sec. 1 of
the Constitution. To suggest that it makes inroads upon the independence of judges who took office after the
Congress has thus charged them with the common duties of citizenship, by making them bear their aliquot
share of the cost of maintaining the Government, is to trivialize the great historic experience on which the
framers based the safeguards of Article 3, Sec. 1. To subject them to a general tax is merely to recognize that
judges also are citizens, and that their particular function in government does not generate an immunity from
sharing with their fellow citizens the material burden of the government whose Constitution and laws they are
charged with administering. (O'Malley vs. Woodrough, 59 S. Ct. 838, A. L. R. 1379.)

Now, the case for the defendant-appellant Collector of Internal Revenue is premised mainly on this decision
(Note A). He claims it holds "that federal judges are subject to the payment of income taxes without violating
the constitutional prohibition against the reduction of their salaries during their continuance in office", and
that it "is a complete repudiation of the ratio decidenci of Evans vs. Gore". To grasp the full import of the
O'Malley precedent, we should bear in mind that:

1. It does not entirely overturn Miles vs. Graham. "To the extent that what the Court now says is inconsistent
with what said in Miles vs. Graham, the latter can not survive", Justice Frankfurter announced.

2. It does not expressly touch nor amend the doctrine in Evans vs, Gore, although it indicates that the
Congressional Act in dispute avoided in part the consequences of that case.

Carefully analyzing the three cases (Evans, Miles and O'Malley) and piecing them together, the logical
conclusion may be reached that although Congress may validly declare by law that salaries of judges appointed
thereafter shall be taxed as income (O'Malley vs. Woodrough) it may not tax the salaries of those judges
already in office at the time of such declaration because such taxation would diminish their salaries (Evans vs.
Gore; Miles vs. Graham). In this manner the rationalizing principle that will harmonize the allegedly discordant
decision may be condensed.

By the way, Justice Frankfurter, writing the O'Malley decision, says the Evans precedent met with disfavor from
legal scholarship opinion. Examining the issues of Harvard Law review at the time of Evans vs. Gore
(Frankfurter is a Harvard graduate and professor), we found that such school publication criticized it. Believing
this to be the "inarticulate consideration that may have influenced the grounds on which the case went off"4,
we looked into the criticism, and discovered that it was predicated on the position that the 16th Amendment
empowered Congress "to collect taxes on incomes from whatever source derived" admitting of no exception.
Said the Harvard Law Journal:
In the recent case of Evans vs. Gore the Supreme Court of the United States decided that by taxing the salary
of a federal judge as a part of his income, Congress was in effect reducing his salary and thus violating Art. III,
sec. 1, of the Constitution. Admitting for the present purpose that such a tax really is a reduction of salary,
even so it would seem that the words of the amendment giving power to tax 'incomes, from whatever source
derived', are sufficiently strong to overrule pro tanto the provisions of Art. III, sec. 1. But, two years ago, the
court had already suggested that the amendment in no way extended the subjects open to federal taxation.
The decision in Evans vs. Gore affirms that view, and virtually strikes from the amendment the words "from
whatever source derived". (Harvard law Review, vol. 34, p. 70)

The Unites States Court's shift of position5 might be attributed to the above detraction which, without
appearing on the surface, led to Frankfurter's sweeping expression about judges being also citizens liable to
income tax. But it must be remembered that undisclosed factor — the 16th Amendment — has no counterpart
in the Philippine legal system. Our Constitution does not repeat it. Wherefore, as the underlying influence and
the unuttered reason has no validity in this jurisdiction, the broad generality loses much of its force.

Anyhow the O'Malley case declares no more than that Congress may validly enact a law taxing the salaries of
judges appointed after its passage. Here in the Philippines no such law has been approved.

Besides, it is markworthy that, as Judge Woodrough had qualified after the express legislative declaration
taxing salaries, he could not very well complain. The United States Supreme Court probably had in mind what
in other cases was maintained, namely, that the tax levied on the salary in effect decreased the emoluments of
the office and therefore the judge qualified with such reduced emoluments.6

The O'Malley ruling does not cover the situation in which judges already in office are made to pay tax by
executive interpretation, without express legislative declaration. That state of affairs is controlled by the
administrative and judicial standards herein-before described in the "second period" of the Federal
Government, namely, the views of Chief Justice Taney and of Attorney-General Hoar and the constant practice
from 1869 to 1938, i.e., when the Income Tax Law merely taxes "income" in general, it does not include
salaries of judges protected from diminution.

In this connection the respondent would make capital of the circumstance that the Act of 1932, upheld in the
O'Malley case, has subsequently been amended by making it applicable even to judges who took office before
1932. This shows, the appellant argues, that Congress interprets the O'Malley ruling to permit legislative
taxation of the salary of judges whether appointed before the tax or after. The answer to this is that the
Federal Supreme Court expressly withheld opinion on that amendment in the O'Malley case. Which is
significant. Anyway, and again, there is here no congressional directive taxing judges' salaries.

Wherefore, unless and until our Legislature approves an amendment to the Income Tax Law expressly taxing
"that salaries of judges thereafter appointed", the O'Malley case is not relevant. As in the United States during
the second period, we must hold that salaries of judges are not included in the word "income" taxed by the
Income Tax Law. Two paramount circumstances may additionally be indicated, to wit: First, when the Income
Tax Law was first applied to the Philippines 1913, taxable "income" did not include salaries of judicial officers
when these are protected from diminution. That was the prevailing official belief in the United States, which
must be deemed to have been transplanted here;7 and second, when the Philippine Constitutional Convention
approved (in 1935) the prohibition against diminution off the judges' compensation, the Federal principle was
known that income tax on judicial salaries really impairs them. Evans vs. Gore and Miles vs. Graham were then
outstanding doctrines; and the inference is not illogical that in restraining the impairment of judicial
compensation the Fathers of the Constitution intended to preclude taxation of the same.8

It seems that prior to the O'Malley decision the Philippine Government did not collect income tax on salaries
of judges. This may be gleaned from General Circular No. 449 of the Department of Finance dated March 4,
1940, which says in part:

xxx xxx xxx

The question of whether or not the salaries of judges should be taken into account in computing additional
residence taxes is closely linked with the liability of judges to income tax on their salaries, in fact, whatever
resolution is adopted with respect to either of said taxes be followed with respect to the other. The opinion of
the Supreme Court of the United States in the case of O'Malley v. Woodrough, 59 S. Ct. 838, to which the
attention of this department has been drawn, appears to have enunciated a new doctrine regarding the
liability of judges to income tax upon their salaries. In view of the fact that the question is of great significance,
the matter was taken up in the Council of State, and the Honorable, the Secretary of Justice was requested to
give an opinion on whether or not, having in mind the said decision of the Supreme Court of the United States
in the case of O'Malley v. Woodrough, there is justification in reversing our present ruling to the effect that
judges are not liable to tax on their salaries. After going over the opinion of the court in the said case, the
Honorable, the Secretary of Justice, stated that although the ruling of the Supreme Court of the United States
is not binding in the Philippines, the doctrine therein enunciated has resolved the issue of the taxability of
judges' salaries into a question of policy. Forthwith, His Excellency the President decided that the best policy to
adopt would be to collect income and additional residence taxes from the President of the Philippines, the
members of the Judiciary, and the Auditor General, and the undersigned was authorized to act accordingly.

In view of the foregoing, income and additional residence taxes should be levied on the salaries received by
the President of the Philippines, members of the Judiciary, and the Auditor General during the calendar year
1939 and thereafter. . . . . (Emphasis ours.)

Of course, the Secretary of Justice correctly opined that the O'Malley decision "resolved the issue of taxability
of judges' salaries into a question of policy." But that policy must be enunciated by Congressional enactment,
as was done in the O'Malley case, not by Executive Fiat or interpretation.

This is not proclaiming a general tax immunity for men on the bench. These pay taxes. Upon buying gasoline,
or other commodities, they pay the corresponding duties. Owning real property, they pay taxes thereon. And
on incomes other than their judicial salary, assessments are levied. It is only when the tax is charged directly
on their salary and the effect of the tax is to diminish their official stipend — that the taxation must be resisted
as an infringement of the fundamental charter.

Judges would indeed be hapless guardians of the Constitution if they did not perceive and block
encroachments upon their prerogatives in whatever form. The undiminishable character of judicial salaries is
not a mere privilege of judges — personal and therefore waivable — but a basic limitation upon legislative or
executive action imposed in the public interest. (Evans vs. Gore)

Indeed the exemption of the judicial salary from reduction by taxation is not really a gratuity or privilege. Let
the highest court of Maryland speak:
The exemption of the judicial compensation from reduction is not in any true sense a gratuity, privilege or
exemption. It is essentially and primarily compensation based upon valuable consideration. The covenant on
the part of the government is a guaranty whose fulfillment is as much as part of the consideration agreed as is
the money salary. The undertaking has its own particular value to the citizens in securing the independence of
the judiciary in crises; and in the establishment of the compensation upon a permanent foundation whereby
judicial preferment may be prudently accepted by those who are qualified by talent, knowledge, integrity and
capacity, but are not possessed of such a private fortune as to make an assured salary an object of personal
concern. On the other hand, the members of the judiciary relinquish their position at the bar, with all its
professional emoluments, sever their connection with their clients, and dedicate themselves exclusively to the
discharge of the onerous duties of their high office. So, it is irrefutable that they guaranty against a reduction
of salary by the imposition of a tax is not an exemption from taxation in the sense of freedom from a burden or
service to which others are liable. The exemption for a public purpose or a valid consideration is merely a
nominal exemption, since the valid and full consideration or the public purpose promoted is received in the
place of the tax. Theory and Practice of Taxation (1900), D. A. Wells, p. 541. (Gordy vs. Dennis (Md.) 1939, 5 Atl.
Rep. 2d Series, p. 80)

It is hard to see, appellants asserts, how the imposition of the income tax may imperil the independence of the
judicial department. The danger may be demonstrated. Suppose there is power to tax the salary of judges, and
the judiciary incurs the displeasure of the Legislature and the Executive. In retaliation the income tax law is
amended so as to levy a 30 per cent on all salaries of government officials on the level of judges. This naturally
reduces the salary of the judges by 30 per cent, but they may not grumble because the tax is general on all
receiving the same amount of earning, and affects the Executive and the Legislative branches in equal
measure. However, means are provided thereafter in other laws, for the increase of salaries of the Executive
and the Legislative branches, or their perquisites such as allowances, per diems, quarters, etc. that actually
compensate for the 30 per cent reduction on their salaries. Result: Judges compensation is thereby diminished
during their incumbency thanks to the income tax law. Consequence: Judges must "toe the line" or else.
Second consequence: Some few judges might falter; the great majority will not. But knowing the frailty of
human nature, and this chink in the judicial armor, will the parties losing their cases against the Executive or
the Congress believe that the judicature has not yielded to their pressure?

Respondent asserts in argumentation that by executive order the President has subjected his salary to the
income tax law. In our opinion this shows obviously that, without such voluntary act of the President, his salary
would not be taxable, because of constitutional protection against diminution. To argue from this executive
gesture that the judiciary could, and should act in like manner is to assume that, in the matter of compensation
and power and need of security, the judiciary is on a par with the Executive. Such assumption certainly ignores
the prevailing state of affairs.

The judgment will be affirmed. So ordered.

G.R. No. L-6355-56 August 31, 1953

PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffs-appellees,

vs.
SATURNINO DAVID, as Collector of Internal Revenue, defendant-appellant.

Office of the Solicitor General Juan R. Liwag and Solicitor Jose P. Alejandro for appellant.
Manuel O. Chan for appellees.

MONTEMAYOR, J.:

This is a joint appeal from the decision of the Court of First Instance of Manila declaring section 13 of Republic
Act No. 590 unconstitutional, and ordering the appellant Saturnino David as Collector of Internal Revenue to
re-fund to Justice Pastor M. Endencia the sum of P1,744.45, representing the income tax collected on his salary
as Associate Justice of the Court of Appeals in 1951, and to Justice Fernando Jugo the amount of P2,345.46,
representing the income tax collected on his salary from January 1,1950 to October 19, 1950, as Presiding
Justice of the Court of Appeals, and from October 20, 1950 to December 31,1950, as Associate Justice of the
Supreme Court, without special pronouncement as to costs.

Because of the similarity of the two cases, involving as they do the same question of law, they were jointly
submitted for determination in the lower court. Judge Higinio B. Macadaeg presiding, in a rather exhaustive
and well considered decision found and held that under the doctrine laid down by this Court in the case of
Perfecto vs. Meer, 85 Phil., 552, the collection of income taxes from the salaries of Justice Jugo and Justice
Endencia was a diminution of their compensation and therefore was in violation of the Constitution of the
Philippines, and so ordered the refund of said taxes.

We see no profit and necessity in again discussing and considering the proposition and the arguments pro and
cons involved in the case of Perfecto vs. Meer, supra, which are raised, brought up and presented here. In that
case, we have held despite the ruling enunciated by the United States Federal Supreme Court in the case of O
'Malley vs. Woodrought 307 U. S., 277, that taxing the salary of a judicial officer in the Philippines is a
diminution of such salary and so violates the Constitution. We shall now confine our-selves to a discussion and
determination of the remaining question of whether or not Republic Act No. 590, particularly section 13, can
justify and legalize the collection of income tax on the salary of judicial officers.

According to the brief of the Solicitor General on behalf of appellant Collector of Internal Revenue, our
decision in the case of Perfecto vs. Meer, supra, was not received favorably by Congress, because immediately
after its promulgation, Congress enacted Republic Act No. 590. To bring home his point, the Solicitor General
reproduced what he considers the pertinent discussion in the Lower House of House Bill No. 1127 which
became Republic Act No. 590.

For purposes of reference, we are reproducing section 9, Article VIII of our Constitution:.

SEC. 9. The members of the Supreme Court and all judges of inferior courts shall hold office during good
behavior, until they reach the age of seventy years, or become incapacitated to discharge the duties of their
office. They shall receive such compensation as may be fixed by law, which shall not be diminished during their
continuance in office. Until the Congress shall provide otherwise, the Chief Justice of the Supreme Court shall
receive an annual compensation of sixteen thousand pesos, and each Associate Justice, fifteen thousand
pesos.

As already stated construing and applying the above constitutional provision, we held in the Perfecto case that
judicial officers are exempt from the payment of income tax on their salaries, because the collection thereof by
the Government was a decrease or diminution of their salaries during their continuance in office, a thing which
is expressly prohibited by the Constitution. Thereafter, according to the Solicitor General, because Congress did
not favorably receive the decision in the Perfecto case, Congress promulgated Republic Act No. 590, if not to
counteract the ruling in that decision, at least now to authorize and legalize the collection of income tax on the
salaries of judicial officers. We quote section 13 of Republic Act No. 590:

SEC 13. No salary wherever received by any public officer of the Republic of the Philippines shall be considered
as exempt from the income tax, payment of which is hereby declared not to be dimunition of his
compensation fixed by the Constitution or by law.

So we have this situation. The Supreme Court in a decision interpreting the Constitution, particularly section 9,
Article VIII, has held that judicial officers are exempt from payment of income tax on their salaries, because the
collection thereof was a diminution of such salaries, specifically prohibited by the Constitution. Now comes the
Legislature and in section 13, Republic Act No. 590, says that "no salary wherever received by any public officer
of the Republic (naturally including a judicial officer) shall be considered as exempt from the income tax," and
proceeds to declare that payment of said income tax is not a diminution of his compensation. Can the
Legislature validly do this? May the Legislature lawfully declare the collection of income tax on the salary of a
public official, specially a judicial officer, not a decrease of his salary, after the Supreme Court has found and
decided otherwise? To determine this question, we shall have to go back to the fundamental principles
regarding separation of powers.

Under our system of constitutional government, the Legislative department is assigned the power to make and
enact laws. The Executive department is charged with the execution of carrying out of the provisions of said
laws. But the interpretation and application of said laws belong exclusively to the Judicial department. And this
authority to interpret and apply the laws extends to the Constitution. Before the courts can determine
whether a law is constitutional or not, it will have to interpret and ascertain the meaning not only of said law,
but also of the pertinent portion of the Constitution in order to decide whether there is a conflict between the
two, because if there is, then the law will have to give way and has to be declared invalid and unconstitutional.

Defining and interpreting the law is a judicial function and the legislative branch may not limit or restrict the
power granted to the courts by the Constitution. (Bandy vs. Mickelson et al., 44N. W., 2nd 341, 342.)

When it is clear that a statute transgresses the authority vested in the legislature by the Constitution, it is the
duty of the courts to declare the act unconstitutional because they cannot shrink from it without violating
their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state is
imperative and unceasing; and, as Chief Justice Marshall said, whenever a statute is in violation of the
fundamental law, the courts must so adjudge and thereby give effect to the Constitution. Any other course
would lead to the destruction of the Constitution. Since the question as to the constitutionality of a statute is a
judicial matter, the courts will not decline the exercise of jurisdiction upon the suggestion that action might be
taken by political agencies in disregard of the judgment of the judicial tribunals. (11 Am. Jur., 714-715.)

Under the American system of constitutional government, among the most important functions in trusted to
the judiciary are the interpreting of Constitutions and, as a closely connected power, the determination of
whether laws and acts of the legislature are or are not contrary to the provisions of the Federal and State
Constitutions. (11 Am. Jur., 905.).

By legislative fiat as enunciated in section 13, Republic Act NO. 590, Congress says that taxing the salary of a
judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of
the meaning of the phrase "which shall not be diminished during their continuance in office," found in section
9, Article VIII of the Constitution, referring to the salaries of judicial officers. This act of interpreting the
Constitution or any part thereof by the Legislature is an invasion of the well-defined and established province
and jurisdiction of the Judiciary.

The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of
what the law was before its passage, so as to give it any binding weight with the courts. A legislative definition
of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature
would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied)

The legislature cannot, upon passing a law which violates a constitutional provision, validate it so as to prevent
an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the
constitutional inhibition. (11 Am. Jur., 919, emphasis supplied)

We have already said that the Legislature under our form of government is assigned the task and the power to
make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic
law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may
declare what a law means, or what a specific portion of the Constitution means, especially after the courts
have in actual case ascertain its meaning by interpretation and applied it in a decision, this would surely cause
confusion and instability in judicial processes and court decisions. Under such a system, a final court
determination of a case based on a judicial interpretation of the law of the Constitution may be undermined or
even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative
department. That would be neither wise nor desirable, besides being clearly violative of the fundamental,
principles of our constitutional system of government, particularly those governing the separation of powers.

So much for the constitutional aspect of the case. Considering the practical side thereof, we believe that the
collection of income tax on a salary is an actual and evident diminution thereof. Under the old system where
the in-come tax was paid at the end of the year or sometime thereafter, the decrease may not be so apparent
and clear. All that the official who had previously received his full salary was called upon to do, was to fulfill his
obligation and to exercise his privilege of paying his income tax on his salary. His salary fixed by law was
received by him in the amount of said tax comes from his other sources of income, he may not fully realize the
fact that his salary had been decreased in the amount of said income tax. But under the present system of
withholding the income tax at the source, where the full amount of the income tax corresponding to his salary
is computed in advance and divided into equal portions corresponding to the number of pay-days during the
year and actually deducted from his salary corresponding to each payday, said official actually does not receive
his salary in full, because the income tax is deducted therefrom every payday, that is to say, twice a month. Let
us take the case of Justice Endencia. As Associate Justice of the Court of Appeals, his salary is fixed at p12,000 a
year, that is to say, he should receive P1,000 a month or P500 every payday, — fifteenth and end of month. In
the present case, the amount collected by the Collector of Internal Revenue on said salary is P1,744.45 for one
year. Divided by twelve (months) we shall have P145.37 a month. And further dividing it by two paydays will
bring it down to P72.685, which is the income tax deducted form the collected on his salary each half month.
So, if Justice Endencia's salary as a judicial officer were not exempt from payment of the income tax, instead of
receiving P500 every payday, he would be actually receiving P427.31 only, and instead of receiving P12,000 a
year, he would be receiving but P10,255.55. Is it not therefor clear that every payday, his salary is actually
decreased by P72.685 and every year is decreased by P1,744.45?
Reading the discussion in the lower House in connection with House Bill No. 1127, which became Republic Act
No. 590, it would seem that one of the main reasons behind the enactment of the law was the feeling among
certain legislators that members of the Supreme Court should not enjoy any exemption and that as citizens,
out of patriotism and love for their country, they should pay income tax on their salaries. It might be stated in
this connection that the exemption is not enjoyed by the members of the Supreme Court alone but also by all
judicial officers including Justices of the Court of Appeals and judges of inferior courts. The exemption also
extends to other constitutional officers, like the President of the Republic, the Auditor General, the members
of the Commission on Elections, and possibly members of the Board of Tax Appeals, commissioners of the
Public Service Commission, and judges of the Court of Industrial Relations. Compares to the number of all
these officials, that of the Supreme Court Justices is relatively insignificant. There are more than 990 other
judicial officers enjoying the exemption, including 15 Justices of the Court of Appeals, about 107 Judges of First
Instance, 38 Municipal Judges and about 830 Justices of the Peace. The reason behind the exemption in the
Constitution, as interpreted by the United States Federal Supreme Court and this Court, is to preserve the
independence of the Judiciary, not only of this High Tribunal but of the other courts, whose present
membership number more than 990 judicial officials.

The exemption was not primarily intended to benefit judicial officers, but was grounded on public policy. As
said by Justice Van Devanter of the United States Supreme Court in the case of Evans vs. Gore (253 U. S., 245):

The primary purpose of the prohibition against diminution was not to benefit the judges, but, like the clause in
respect of tenure, to attract good and competent men to the bench and to promote that independence of
action and judgment which is essential to the maintenance of the guaranties, limitations and pervading
principles of the Constitution and to the administration of justice without respect to person and with equal
concern for the poor and the rich. Such being its purpose, it is to be construed, not as a private grant, but as a
limitation imposed in the public interest; in other words, not restrictively, but in accord with its spirit and the
principle on which it proceeds.

Having in mind the limited number of judicial officers in the Philippines enjoying this exemption, especially
when the great bulk thereof are justices of the peace, many of them receiving as low as P200 a month, and
considering further the other exemptions allowed by the income tax law, such as P3,000 for a married person
and P600 for each dependent, the amount of national revenue to be derived from income tax on the salaries
of judicial officers, were if not for the constitutional exemption, could not be large or substantial. But even if it
were otherwise, it should not affect, much less outweigh the purpose and the considerations that prompted
the establishment of the constitutional exemption. In the same case of Evans vs. Gore, supra, the Federal
Supreme Court declared "that they (fathers of the Constitution) regarded the independence of the judges as
far as greater importance than any revenue that could come from taxing their salaries.

When a judicial officer assumed office, he does not exactly ask for exemption from payment of income tax on
his salary, as a privilege . It is already attached to his office, provided and secured by the fundamental law, not
primarily for his benefit, but based on public interest, to secure and preserve his independence of judicial
thought and action. When we come to the members of the Supreme Court, this excemption to them is
relatively of short duration. Because of the limited membership in this High Tribunal, eleven, and due to the
high standards of experience, practice and training required, one generally enters its portals and comes to join
its membership quite late in life, on the aver-age, around his sixtieth year, and being required to retire at
seventy, assuming that he does not die or become incapacitated earlier, naturally he is not in a position to
receive the benefit of exemption for long. It is rather to the justices of the peace that the exemption can give
more benefit. They are relatively more numerous, and because of the meager salary they receive, they can less
afford to pay the income tax on it and its diminution by the amount of the income tax if paid would be real,
substantial and onerous.

Considering exemption in the abstract, there is nothing unusual or abhorrent in it, as long as it is based on
public policy or public interest. While all other citizens are subject to arrest when charged with the commission
of a crime, members of the Senate and House of Representatives except in cases of treason, felony and breach
of the peace are exempt from arrest, during their attendance in the session of the Legislature; and while all
other citizens are generally liable for any speech, remark or statement, oral or written, tending to cause the
dishonor, discredit or contempt of a natural or juridical person or to blacken the memory of one who is dead,
Senators and Congressmen in making such statements during their sessions are extended immunity and
exemption.

And as to tax exemption, there are not a few citizens who enjoy this exemption. Persons, natural and juridical,
are exempt from taxes on their lands, buildings and improvements thereon when used exclusively for
educational purposes, even if they derive income therefrom. (Art. VI, Sec. 22 [3].) Holders of government
bonds are exempted from the payment of taxes on the income or interest they receive therefrom (sec. 29 (b)
[4], National Internal Revenue Code as amended by Republic Act No. 566). Payments or income received by
any person residing in the Philippines under the laws of the United States administered by the United States
Veterans Administration are exempt from taxation. (Republic Act No. 360). Funds received by officers and
enlisted men of the Philippine Army who served in the Armed Forces of the United States, allowances earned
by virtue of such services corresponding to the taxable years 1942 to 1945, inclusive, are exempted from
income tax. (Republic Act No. 210). The payment of wages and allowances of officers and enlisted men of the
Army Forces of the Philippines sent to Korea are also exempted from taxation. (Republic Act No. 35). In other
words, for reasons of public policy and public interest, a citizen may justifiably by constitutional provision or
statute be exempted from his ordinary obligation of paying taxes on his income. Under the same public policy
and perhaps for the same it not higher considerations, the framers of the Constitution deemed it wise and
necessary to exempt judicial officers from paying taxes on their salaries so as not to decrease their
compensation, thereby insuring the independence of the Judiciary.

In conclusion we reiterate the doctrine laid down in the case of Perfecto vs. Meer, supra, to the effect that the
collection of income tax on the salary of a judicial officer is a diminution thereof and so violates the
Constitution. We further hold that the interpretation and application of the Constitution and of statutes is
within the exclusive province and jurisdiction of the Judicial department, and that in enacting a law, the
Legislature may not legally provide therein that it be interpreted in such a way that it may not violate a
Constitutional prohibition, thereby tying the hands of the courts in their task of later interpreting said statute,
specially when the interpretation sought and provided in said statute runs counter to a previous interpretation
already given in a case by the highest court of the land.

In the views of the foregoing considerations, the decision appealed from is hereby affirmed, with no
pronouncement as to costs.
G.R. No. 78780 July 23, 1987

DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR., petitioners,

vs.
COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME COURT OF THE
PHILIPPINES, respondents.

RESOLUTION

MELENCIO-HERRERA, J.:

Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19 and 53, respectively, of the
Regional Trial Court, National Capital Judicial Region, all with stations in Manila, seek to prohibit and/or
perpetually enjoin respondents, the Commissioner of Internal Revenue and the Financial Officer of the
Supreme Court, from making any deduction of withholding taxes from their salaries.

In a nutshell, they submit that "any tax withheld from their emoluments or compensation as judicial officers
constitutes a decrease or diminution of their salaries, contrary to the provision of Section 10, Article VIII of the
1987 Constitution mandating that "(d)uring their continuance in office, their salary shall not be decreased,"
even as it is anathema to the Ideal of an independent judiciary envisioned in and by said Constitution."

It may be pointed out that, early on, the Court had dealt with the matter administratively in response to
representations that the Court direct its Finance Officer to discontinue the withholding of taxes from salaries of
members of the Bench. Thus, on June 4, 1987, the Court en banc had reaffirmed the Chief Justice's directive as
follows:

RE: Question of exemption from income taxation. — The Court REAFFIRMED the Chief Justice's previous
and standing directive to the Fiscal Management and Budget Office of this Court to continue with the
deduction of the withholding taxes from the salaries of the Justices of the Supreme Court as well as from the
salaries of all other members of the judiciary.

That should have resolved the question. However, with the filing of this petition, the Court has deemed it best
to settle the legal issue raised through this judicial pronouncement. As will be shown hereinafter, the clear
intent of the Constitutional Commission was to delete the proposed express grant of exemption from payment
of income tax to members of the Judiciary, so as to "give substance to equality among the three branches of
Government" in the words of Commissioner Rigos. In the course of the deliberations, it was further expressly
made clear, specially with regard to Commissioner Joaquin F. Bernas' accepted amendment to the amendment
of Commissioner Rigos, that the salaries of members of the Judiciary would be subject to the general income
tax applied to all taxpayers.

This intent was somehow and inadvertently not clearly set forth in the final text of the Constitution as
approved and ratified in February, 1987 (infra, pp. 7-8). Although the intent may have been obscured by the
failure to include in the General Provisions a proscription against exemption of any public officer or employee,
including constitutional officers, from payment of income tax, the Court since then has authorized the
continuation of the deduction of the withholding tax from the salaries of the members of the Supreme Court,
as well as from the salaries of all other members of the Judiciary. The Court hereby makes of record that it had
then discarded the ruling in Perfecto vs. Meer and Endencia vs. David, infra, that declared the salaries of
members of the Judiciary exempt from payment of the income tax and considered such payment as a
diminution of their salaries during their continuance in office. The Court hereby reiterates that the salaries of
Justices and Judges are properly subject to a general income tax law applicable to all income earners and that
the payment of such income tax by Justices and Judges does not fall within the constitutional protection
against decrease of their salaries during their continuance in office.

A comparison of the Constitutional provisions involved is called for. The 1935 Constitution provided:

... (The members of the Supreme Court and all judges of inferior courts) shall receive such compensation as
may be fixed by law, which shall not be diminished during their continuance in office ... 1 (Emphasis supplied).

Under the 1973 Constitution, the same provision read:

The salary of the Chief Justice and of the Associate Justices of the Supreme court, and of judges of inferior
courts shall be fixed by law, which shall not be decreased during their continuance in office. ... 2 (Emphasis
ours).

And in respect of income tax exemption, another provision in the same 1973 Constitution specifically
stipulated:

No salary or any form of emolument of any public officer or employee, including constitutional officers, shall
be exempt from payment of income tax. 3

The provision in the 1987 Constitution, which petitioners rely on, reads:

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower
courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. 4 (Emphasis
supplied).

The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the 1973 Constitution, for
which reason, petitioners claim that the intent of the framers is to revert to the original concept of "non-
diminution "of salaries of judicial officers.

The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII, negate such
contention.

The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:

Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme Court and of judges of
the lower courts shall be fixed by law. During their continuance in office, their salary shall not be diminished
nor subjected to income tax. Until the National Assembly shall provide otherwise, the Chief Justice shall
receive an annual salary of _____________ and each Associate Justice ______________ pesos. 5 (Emphasis
ours)

During the debates on the draft Article (Committee Report No. 18), two Commissioners presented their
objections to the provision on tax exemption, thus:

MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices, does this not violate the
principle of the uniformity of taxation and the principle of equal protection of the law? After all, tax is levied
not on the salary but on the combined income, such that when the judge receives a salary and it is comingled
with the other income, we tax the income, not the salary. Why do we have to give special privileges to the
salary of justices?

MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or decrease of their salary
during their term. This is an indirect way of decreasing their salary and affecting the independence of the
judges.

MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the special privilege on
taxation might, in effect, be a violation of the principle of uniformity in taxation and the equal protection
clause. 6

xxx xxx xxx

MR. OPLE. x x x

Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto Concepcion, for
whom we have the highest respect, to surround the Supreme Court and the judicial system as a whole with the
whole armor of defense against the executive and legislative invasion of their independence. But in so doing,
some of the citizens outside, especially the humble government employees, might say that in trying to erect a
bastion of justice, we might end up with the fortress of privileges, an island of extra territoriality under the
Republic of the Philippines, because a good number of powers and rights accorded to the Judiciary here may
not be enjoyed in the remotest degree by other employees of the government.

An example is the exception from income tax, which is a kind of economic immunity, which is, of course,
denied to the entire executive department and the legislative. 7

And during the period of amendments on the draft Article, on July 14, 1986, Commissioner Cirilo A. Rigos
proposed that the term "diminished" be changed to "decreased" and that the words "nor subjected to income
tax" be deleted so as to "give substance to equality among the three branches in the government.

Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended the original draft
and referred to the ruling of this Court in Perfecto vs. Meer 8 that "the independence of the judges is of far
greater importance than any revenue that could come from taxing their salaries." Commissioner Rigos then
moved that the matter be put to a vote. Commissioner Joaquin G. Bernas stood up "in support of an
amendment to the amendment with the request for a modification of the amendment," as follows:

FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying that it is not enough to drop
the phrase "shall not be subjected to income tax," because if that is all that the Gentleman will do, then he will
just fall back on the decision in Perfecto vs. Meer and in Dencia vs. David [should be Endencia and Jugo vs.
David, etc., 93 Phil. 696[ which excludes them from income tax, but rather I would propose that the statement
will read: "During their continuance in office, their salary shall not be diminished BUT MAY BE SUBJECT TO
GENERAL INCOME TAX."IN support of this position, I would say that the argument seems to be that the justice
and judges should not be subjected to income tax because they already gave up the income from their
practice. That is true also of Cabinet members and all other employees. And I know right now, for instance,
there are many people who have accepted employment in the government involving a reduction of income
and yet are still subject to income tax. So, they are not the only citizens whose income is reduced by accepting
service in government.

Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner Rustico F. de los
Reyes, Jr. then moved for a suspension of the session. Upon resumption, Commissioner Bernas announced:

During the suspension, we came to an understanding with the original proponent, Commissioner Rigos, that
his amendment on page 6,. line 4 would read: "During their continuance in office, their salary shall not be
DECREASED."But this is on the understanding that there will be a provision in the Constitution similar to
Section 6 of Article XV, the General Provisions of the 1973 Constitution, which says:

No salary or any form of emolument of any public officer or employee, including constitutional officers, shall
be exempt from payment of income tax.

So, we put a period (.) after "DECREASED" on the understanding that the salary of justices is subject to tax.

When queried about the specific Article in the General Provisions on non-exemption from tax of salaries of
public officers, Commissioner Bernas replied:

FR BERNAS. Yes, I do not know if such an article will be found in the General Provisions. But at any rate, when
we put a period (.) after "DECREASED," it is on the understanding that the doctrine in Perfecto vs. Meer and
Dencia vs. David will not apply anymore.

The amendment to the original draft, as discussed and understood, was finally approved without objection.

THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there will be a provision under
the Article on General Provisions. Could Commissioner Rosario Braid kindly take note that the salaries of
officials of the government including constitutional officers shall not be exempt from income tax? The
amendment proposed herein and accepted by the Committee now reads as follows: "During their continuance
in office, their salary shall not be DECREASED"; and the phrase "nor subjected to income tax" is deleted.9

The debates, interpellations and opinions expressed regarding the constitutional provision in question until it
was finally approved by the Commission disclosed that the true intent of the framers of the 1987 Constitution,
in adopting it, was to make the salaries of members of the Judiciary taxable. The ascertainment of that intent is
but in keeping with the fundamental principle of constitutional construction that the intent of the framers of
the organic law and of the people adopting it should be given effect.10 The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the
people in the adoption of the Constitution.11 it may also be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation offered by the framers.12 1avvphi1

Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is again reproduced
hereunder:

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower
courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. (Emphasis
supplied).
it is plain that the Constitution authorizes Congress to pass a law fixing another rate of compensation of
Justices and Judges but such rate must be higher than that which they are receiving at the time of enactment,
or if lower, it would be applicable only to those appointed after its approval. It would be a strained
construction to read into the provision an exemption from taxation in the light of the discussion in the
Constitutional Commission.

With the foregoing interpretation, and as stated heretofore, the ruling that "the imposition of income tax upon
the salary of judges is a dimunition thereof, and so violates the Constitution" in Perfecto vs. Meer,13 as
affirmed in Endencia vs. David 14 must be declared discarded. The framers of the fundamental law, as the alter
ego of the people, have expressed in clear and unmistakable terms the meaning and import of Section 10,
Article VIII, of the 1987 Constitution that they have adopted

Stated otherwise, we accord due respect to the intent of the people, through the discussions and deliberations
of their representatives, in the spirit that all citizens should bear their aliquot part of the cost of maintaining
the government and should share the burden of general income taxation equitably.

WHEREFORE, the instant petition for Prohibition is hereby dismissed.

G.R. No. L-34854 November 20, 1978

FORTUNATO R. PAMIL, petitioner-appellant,

vs.
HONORABLE VICTORINO C. TELERON, as Judge of the Court of First Instance of Bohol, Branch III, and REV. FR.
MARGARITO R. GONZAGA, respondents-appellees.

Urbano H. Lagunay for petitioner.

Cristeto O. Cimagala for respondents.

FERNANDO, J.:

The novel question raised in this certiorari proceeding concerns the eligibility of an ecclesiastic to an elective
municipal position. Private respondent, Father Margarito R. Gonzaga, was, in 1971, elected to the position of
municipal mayor of Alburquerque, Bohol. 1 Therefore, he was duly proclaimed. A suit for quo warranto was
then filed by petitioner, himself an aspirant for the office, for his disqualification 2 based on this Administrative
Code provision: "In no case shall there be elected or appointed to a municipal office ecclesiastics, soldiers in
active service, persons receiving salaries or compensation from provincial or national funds, or contractors for
public works of the municipality." 3 The suit did not prosper, respondent Judge sustaining the right of Father
Gonzaga to the office of municipal mayor. He ruled that such statutory ineligibility was impliedly repealed by
the Election Code of 1971. The matter was then elevated to this Tribunal by petitioner. It is his contention that
there was no such implied repeal, that it is still in full force and effect. Thus was the specific question raised.
There is no clear-cut answer from this Tribunal. After a lengthy and protracted deliberation, the Court is
divided on the issue. Seven members of the Court are of the view that the judgment should be affirmed as the
challenged provision is no longer operative either because it was superseded by the 1935 Constitution or
repealed. Outside of the writer of this opinion, six other Justices are of this mind They are Justices Teehankee,
Muñoz Palma Concepcion Jr., Santos, Fernandez, and Guerrero. For them, the overriding principle of the
supremacy of the Constitution or, at the very least, the repeal of such provision bars a reversal. 4 The
remaining five members of this Court, Chief Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino, on
the other hand, hold the position that such a prohibition against an ecclesiastic running for elective office is
not tainted with any constitutional infirmity.

The vote is thus indecisive. While five members of the Court constitute a minority, the vote of the remaining
seven does not suffice to render the challenged provision ineffective. Section 2175 of the Revised
Administrative Code, as far as ecclesiastics are concerned, must be accorded respect. The presumption of
validity calls for its application. Under the circumstances, certiorari lies. That is the conclusion arrived at by the
writer of this opinion, joined by Justice Concepcion Jr., Santos, Fernandez, and Guerrero. They have no choice
then but to vote for the reversal of the lower court decision and declare ineligible respondent Father Margarito
R. Gonzaga for the office of municipal mayor. With the aforesaid five other members, led by the Chief Justice,
entertaining no doubt as to his lack of eligibility, this petition for certiorari must be granted.

Except for the dispositive part announcing the judgment of the Court, the remainder of this opinion sets forth
the reasons why there are constitutional objections to the continuing force and effectivity of Section 2175 as
far as ecclesiastics are concerned.

1. The Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as it is now under the
present Charter, it is explicitly declared: "No religious test shall be required for the exercise of civil or political
rights." 5 The principle of the paramount character of the fundamental law 6 thus comes into play. There are
previous rulings to that effect. 6 The ban imposed by the Administrative Code cannot survive. So the writer of
this opinion would hold.

2. This is to conform to this provision of the 1935 Charter: "All laws of the Philippine Islands shall continue
in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain
operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the
Congress of the Philippines, and all references in such laws to the government or officials of the Philippines
shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this
Constitution." 7 It was first applied in People v. Linsangan, 8 decided in December, 1935, barely a month after
that Constitution took effect. This Court held that Section 2718 of the Revised Administrative Code that would
allow the prosecution of a person who remains delinquent in the payment of cedula tax, 9 was no longer in
force. As stated by the then Justice, later Chief Justice, Abad Santos, after setting forth that the Constitution
prohibits the imprisonment for debt or non-payment of poll tax: 10 "It seems too clear to require
demonstration that section 2718 of the Revised Administrative Code is inconsistent with section 1, clause 12,
of Article Ill of the Constitution in that, while the former authorizes imprisonment for non-payment of the poll
or cedula tax, the latter forbids it. It follows that upon the inauguration of the Government of the
Commonwealth, said section 2718 of the Revised Administrative Code became inoperative, and no judgment
of conviction can be based thereon." 11
De los Santos v. Mallare 12 came next. The President, under the Revised Administrative Code, could remove at
pleasure any of the appointive officials under the Charter of the City of Baguio. 13 Relying on such a provision,
the then President Quirino removed petitioner De los Santos, who was appointed City Engineer of Baguio on
July 16, 1946, and chose in his place respondent Gil R. Mallare. Why such a power could not pass the test of
validity under the 1935 Constitution was pointed out by Justice Tuason thus: "So, unlike legislation that is
passed in defiance of the Constitution, assertive and menacing, the questioned part of section 2545 of the
Revised Administrative Code does not need a positive declaration of nullity by the court to put it out of the
way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute book by the
Constitution itself by express mandate before the petitioner was appointed." 14

Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the light of the cited provision of the 1935
Constitution, as authoritatively construed, Article 145 of the Revised Penal Code was found to be inoperative.
As therein provided, the penalty of prision correccional is imposed on any public officer or employee who,
while the Congress was in regular or special session, would arrest or search a member thereof, except in case
he had committed a crime punishable by a penalty higher than prision mayor. This Court ruled that the Revised
Penal Code extended unduly the legislative privilege of freedom from arrest as ordained in the Constitution. 16
Such a provision then was contrary to and in defiance of the clear expression of the will of the Constitutional
Convention of 1934 that such immunity was never intended to exempt members of a legislative body from an
arrest for a criminal offense, the phrase treason, felony and breach of the peace being all-inclusive. Reference
was likewise made to the prevailing American doctrine to that effect as enunciated by Williamson v. United
States. 17

3. It would be an unjustified departure from a settled principle of the applicable construction of the
provision on what laws remain operative after 1935 if the plea of petitioner in this case were to be heeded.
The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any
elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the
Constitution. To so exclude them is to impose a religious test. Torcaso v. Watkins 18 an American Supreme
Court decision, has persuasive weight. What was there involved was the validity of a provision in the Maryland
Constitution prescribing that "no religious test ought ever to be required as a disqualification for any office or
profit or trust in this State, other than a declaration of belief in the existence of God ..." Such a constitutional
requirement was assailed as contrary to the First Amendment of the United States Constitution by an
appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a
belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court,
which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice
Black: "this Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief
and religion and therefore cannot be enforced against him." 19

The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here
being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is
thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express
constitutional mandate. It is not a valid argument against this conclusion to assert that under the Philippine
Autonomy Act of 1916, there was such a prohibition against a religious test, and yet such a ban on holding a
municipal position had not been nullified. It suffices to answer that no question was raised as to its validity. In
Vilar v. Paraiso, 20 decided under the 1935 Constitution, it was assumed that there was no conflict with the
fundamental law.
4. This is the first case then where this Court has to face squarely such an issue. This excerpt from the
opinion of Justice Moreland in the leading case of McGirr v. Hamilton, 21 a 1915 decision, has a force
unimpaired by the passage of time: "Relative to the theory that Act No. 1627 has stood so long and been
silently acquiesced in for so great a length of time that it should not be disturbed, it may be said that the fact
that certain individuals have, by ignorance or neglect, failed to claim their fundamental rights, furnishes no
reason why another individual, alert to his rights and their proper enforcement, should be prevented from
asserting and sustaining those rights. The fact that Smith and Jones have failed to demand their constitutional
rights furnishes no basis for the refusal to consider and uphold the constitutional rights of Richard Roe In the
case of Sadler v. Langham (34 Ala. 311), this same question was under consideration and the court in resolving
it said: 'It may be urged, that these statutes have stood, and been silently acquiesced in for so great a length of
time, they should not now be disturbed. We are sensible of the force of this argument. It will be observed,
however, that in Tennessee, the decision which declared the private road law unconstitutional was pronounced
forty years after the enact. judgment of the statute; and in New York, after seventy years had elapsed. It is,
perhaps, never too late to re- establish constitutional rights, the observance of which had been silently
neglected." 22 To support such a conclusion, no less than the great Chief Justice Marshall, speaking for this
Court in United States v. More, in disposing of a contention by one of the parties as to appellate jurisdiction
having been previously exercised and therefore beyond dispute was likewise relied upon. Thus: "No question
was made in that case as to the jurisdiction petition. It passed sub silentio, and the court does not consider
itself bound by that case. 23 So it should be in this litigation. As set forth at the outset, it is not even necessary
to annul the challenged Administrative Code provision. It is merely declared inoperative by virtue of the
mandate of the 1935 Constitution, similarly found in the present Charter.

5. Nonetheless, tie above view failed to obtain the necessary eight votes needed to give it binding force.
The attack on the continuing effectivity of Section 2175 having failed, it must be, as noted at the outset, given
full force and application.

WHEREFORE, the petition for certiorari is granted. The judgment a quo is reversed and set aside. Respondent
Gonzaga is hereby ordered immediately to vacate the mayoralty of the municipality of Albuquerque, Bohol,
there being a failure to elect. No pronouncement as to costs.
G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND
CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO
CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is
the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring
personalities are important enough but more transcendental are the constitutional issues embedded on the
parties' dispute. While the significant issues are many, the jugular issue involves the relationship between the
ruler and the ruled in a democracy, Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent
Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner
believing he would rescue them from life's adversity. Both petitioner and the respondent were to serve a six-
year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but
surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governor,
Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and
friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona,
Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse."
He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from
November 1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million
on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President
Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee
on Justice (then headed by Senator Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security, then headed by
Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach
the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a
pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step
down from the presidency as he had lost the moral authority to govern.3 Two days later or on October 13, the
Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner.4 Four days
later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the
"supreme self-sacrifice" of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on
October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services6 and
later asked for petitioner's resignation.7 However, petitioner strenuously held on to his office and refused to
resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior
Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata,
former Senator Vicente Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II also resigned
from the Department of Trade and Industry.9 On November 3, Senate President Franklin Drilon, and House
Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng
Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker
Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than 1/3 of all the
members of the House of Representatives to the Senate. This caused political convulsions in both houses of
Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated
by Representative Fuentebella.12 On November 20, the Senate formally opened the impeachment trial of the
petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G.
Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial started.14
The battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors
were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto
Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel
Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of
Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former
Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his
brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the
highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes.
The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of
Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the
signature "Jose Velarde" on documents involving a P500 million investment agreement with their bank on
February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it
resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that the
petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider
trading.16 Then came the fateful day of January 16, when by a vote of 11-1017 the senator-judges ruled
against the opening of the second envelope which allegedly contained evidence showing that petitioner held
P3.3 billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors walked
out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.18 The ruling made at
10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight,
thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the
petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective
resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment
tribunal.19 Senator Raul Roco quickly moved for the indefinite postponement of the impeachment
proceedings until the House of Representatives shall have resolved the issue of resignation of the public
prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of
people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in
Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation.
Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the
continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more
people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed
Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the
Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where
he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense
Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA
Shrine.22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of
the Armed Forces, we wish to announce that we are withdrawing our support to this government."23 A little
later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly
resigned from their posts.25 Rallies for the resignation of the petitioner exploded in various parts of the
country. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of
the highly controversial second envelope.26 There was no turning back the tide. The tide had become a
tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful
and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive Secretary. Secretary
Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst.
Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated
for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now
Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez.27 Outside the palace,
there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-
throwing and caused minor injuries. The negotiations consumed all morning until the news broke out that
Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the
Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He issued the
following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the
Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious
doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor
that will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake
of peace and in order to begin the healing process of our nation. I leave the Palace of our people with
gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges
that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national spirit of
reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another copy was
transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the
duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter
No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of Office as
President of the Republic of the Philippines before the Chief Justice — Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to
the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as
an administrative matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office of
Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20,
2001.1âwphi1.nêt

This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper
party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.34
Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a
reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio
Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo.35 US
President George W. Bush gave the respondent a telephone call from the White House conveying US
recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37 The House then passed Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the
Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of Representatives to
the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, extending its congratulations and expressing its support for her administration as a partner in the
attainment of the nation's goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later, she also
signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.42 The next
day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr.43
Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations, citing
as reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the
Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of
Representatives also approved Senator Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr.
took his oath as Vice President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio
and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she voted against
the closure of the impeachment court on the grounds that the Senate had failed to decide on the
impeachment case and that the resolution left open the question of whether Estrada was still qualified to run
for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from
16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by the ABS-CBN/SWS
from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as
replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro
Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating
increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-to-
upper classes, 64% in the D or mass class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases
previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No.
0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case
No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for
Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc.
on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4)
OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public
funds, illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de
Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46,
and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for
plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the
charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the
following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty.
Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-
affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the
aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a
petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent
Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757
and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as
President is over and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No.
146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and
declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting
capacity pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same
day, February 6, required the respondents "to comment thereon within a non-extendible period expiring on 12
February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No.
146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief
Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of petitioner's
counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have
"compromised themselves by indicating that they have thrown their weight on one side" but nonetheless
inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file their
memoranda and two (2) days to submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for
"Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of
the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged
resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for
contempt to refrain from making any comment or discussing in public the merits of the cases at bar while they
are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from
resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E. Estrada
and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman may
immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on
February 15, 2001, which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for
decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on
leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of
petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is
immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence, are
beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar
assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the
presidency through people power; that she has already taken her oath as the 14th President of the Republic;
that she has exercised the powers of the presidency and that she has been recognized by foreign governments.
They submit that these realities on ground constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on
political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th
century, the political question doctrine which rests on the principle of separation of powers and on prudential
considerations, continue to be refined in the mills of constitutional law.55 In the United States, the most
authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in
the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department or a lack of
judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an
initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless
one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability
on the ground of a political question's presence. The doctrine of which we treat is one of 'political questions',
not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation
of the inner and outer perimeters of a political question.57 Our leading case is Tanada v. Cuenco,58 where this
Court, through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or executive branch of the government.
It is concerned with issues dependent upon the wisdom, not legality of a particular measure." To a great
degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the
power of judicial review of this court 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 government.59
Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise
of its jurisdiction.60 With the new provision, however, courts are given a greater prerogative to determine
what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of
doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming
the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas
corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President
Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since the cases at bar involve the
legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral
reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government
of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful
one. No less than the Freedom Constitution63 declared that the Aquino government was installed through a
direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as
amended." In is familiar learning that the legitimacy of a government sired by a successful revolution by
people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional
loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath
that she took at the EDSA Shrine is the oath under the 1987 Constitution.64 In her oath, she categorically
swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the
powers of the presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the
exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of
people power of freedom of speech and freedom of assembly to petition the government for redress of
grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of
the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra
constitutional and the resignation of the sitting President that it caused and the succession of the Vice
President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the
government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the
reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the
recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus non."65
The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights
that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing,
through the use of the press or other similar means; (2) of the right of association for purposes of human life
and which are not contrary to public means; and (3) of the right to send petitions to the authorities,
individually or collectively." These fundamental rights were preserved when the United States acquired
jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued
by President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of speech
or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of
grievances." The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the
Jones Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These
rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the government for redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The
reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual
fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is
essential to provide for participation in decision-making by all members of society; and fourth, it is a method of
achieving a more adaptable and hence, a more stable community of maintaining the precarious balance
between healthy cleavage and necessary consensus."69 In this sense, freedom of speech and of assembly
provides a framework in which the "conflict necessary to the progress of a society can take place without
destroying the society."70 In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American Bar
Association which emphasized that "the basis of the right of assembly is the substitution of the expression of
opinion and belief by talk rather than force; and this means talk for all and by all."72 In the relatively recent
case of Subayco v. Sandiganbayan,73 this Court similar stressed that "… it should be clear even to those with
intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should
listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution
require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article
II,74 and section 875 of Article VII, and the allocation of governmental powers under section 1176 of Article
VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the
correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v.
Madison,77 the doctrine has been laid down that "it is emphatically the province and duty of the judicial
department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political question is
but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political question.
Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and
by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent
disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her
oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice
President shall become the President to serve the unexpired term. In case of death, permanent disability,
removal from office, or resignation of both the President and Vice President, the President of the Senate or, in
case of his inability, the Speaker of the House of Representatives, shall then act as President until the President
or Vice President shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as of January
20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a high level
legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign
and the intent must be coupled by acts of relinquishment.78 The validity of a resignation is not government by
any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long
as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he
evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo.
Consequently, whether or not petitioner resigned has to be determined from his act and omissions before,
during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and
circumstantial evidence bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the
succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee investigated.
The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked
the hate against him. The Articles of Impeachment filed in the House of Representatives which initially was
given a near cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115
representatives or more than 1/3 of the House of Representatives. Soon, petitioner's powerful political allies
began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and
former Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic advisers
resigned together with his Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call
reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the
second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the
EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew exponentially.
Rallies and demonstration quickly spread to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the petitioner.
The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara
serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning of January 19,
petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to create
an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara
into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo
(Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to
call for a snap presidential election and stressed he would not be a candidate. The proposal for a snap election
for president in May where he would not be a candidate is an indicium that petitioner had intended to give up
the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators
demanding the resignation of the petitioner and dramatically announced the AFP's withdrawal of support from
the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner
weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider
the option of "dignified exit or resignation."81 Petitioner did not disagree but listened intently.82 The sky was
falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a
graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go
abroad with enough funds to support him and his family.83 Significantly, the petitioner expressed no objection
to the suggestion for a graceful and dignified exit but said he would never leave the country.84 At 10:00 p.m.,
petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in
the palace."85 This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind
was already concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and
requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly
transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed. Again, we note
that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of
the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January
20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days
after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the
agreement to open the second envelope to vindicate the name of the petitioner.87 Again, we note that the
resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. According
to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the
Angara Diary shows the reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately stresses that he just
wants the five-day period promised by Reyes, as well as to open the second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape,
bureaucracy, intriga. (I am very tired. I don't want any more of this – it's too painful. I'm tired of the red tape,
the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x
x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this round, I
am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on
Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the Republic of
the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new administration shall
commence, and persons designated by the Vice President to various positions and offices of the government
shall start their orientation activities in coordination with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice
President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the President
and his family as approved by the national military and police authority (Vice President).
5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings
account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the
request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph
Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their person and property
throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee freedom from
persecution or retaliation from government and the private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of Staff,
as approved by the national military and police authorities – Vice President (Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize the
opening of the second envelope in the impeachment trial as proof that the subject savings account does not
belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition
Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet
officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice President
(Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary
signatures as affixed to this agreement and insure faithful implementation and observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in
"Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that
during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The
only unsettled points at that time were the measures to be undertaken by the parties during and after the
transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner
was further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator
Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent
Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five points to effect a
peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices in the
background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be effective
on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of the
Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20 January 2001,
wherein persons designated by the Vice President to various government positions shall start orientation
activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of the
President and his families throughout their natural lifetimes as approved by the national military and police
authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national military
and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the
contents of which shall be offered as proof that the subject savings account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex "B" heretofore
attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and
awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria Macapagal-
Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the
agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot
and academic. Within moments, Macel erases the first provision and faxes the documents, which have been
signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as
it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath
to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and Cabinet members
who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is
there to protect the Palace, since the police and military have already withdrawn their support for the
President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's personal possessions
as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving
Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not
wish to be a factor that will prevent the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake
of peace and in order to begin the healing process of our nation. I leave the Palace of our people with
gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges
that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national spirit of
reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving
Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the
respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process
of our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-
assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the
opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the
people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the
same service of our country. Petitioner's reference is to a future challenge after occupying the office of the
president which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and
solidarity could not be attained if he did not give up the presidency. The press release was petitioner's
valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001
of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the
said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration
that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the
Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the cases at
bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel
of the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as
strange that the letter, despite its legal value, was never referred to by the petitioner during the week-long
crisis. To be sure, there was not the slightest hint of its existence when he issued his final press release. It was
all too easy for him to tell the Filipino people in his press release that he was temporarily unable to govern and
that he was leaving the reins of government to respondent Arroyo for the time bearing. Under any
circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it was prepared
before the press release of the petitioner clearly as a later act. If, however, it was prepared after the press
released, still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his reputation
by the people. There is another reason why this Court cannot given any legal significance to petitioner's letter
and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as
a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt
Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or
administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of
the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No.
3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate,
did not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship
speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the period of
amendments the inclusion of a provision to the effect that no public official who is under prosecution for any
act of graft or corruption, or is under administrative investigation, shall be allowed to voluntarily resign or
retire."92 During the period of amendments, the following provision was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution against him, for any offense under the Act or under the
provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his prosecution under this Act
for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of
the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15
above became section 13 under the new bill, but the deliberations on this particular provision mainly focused
on the immunity of the President, which was one of the reasons for the veto of the original bill. There was
hardly any debate on the prohibition against the resignation or retirement of a public official with pending
criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is
to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop
the investigation of a pending criminal or administrative case against him and to prevent his prosecution under
the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be
compelled to render service for that would be a violation of his constitutional right.94 A public official has the
right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public
official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not
cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or
retirement to avoid prosecution.
There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show
that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were
OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been
filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for
the reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases
cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No.
3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or
prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12
of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is
debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered
pending at the time petitioner resigned because the process already broke down when a majority of the
senator-judges voted against the opening of the second envelope, the public and private prosecutors walked
out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he
resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the
powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is
contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and
Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the
petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress has
the ultimate authority under the Constitution to determine whether the President is incapable of performing
his functions in the manner provided for in section 11 of article VII."95 This contention is the centerpiece of
petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge the powers and duties of his office, and
until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by
the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is unable to discharge the
powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the
office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of
Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his
office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For
that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its
rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve
days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that
the President is unable to discharge the powers and duties of his office, the Vice-President shall act as
President; otherwise, the President shall continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and Speaker of
the House;
Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about
12:30 p.m.;
Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House Resolution No.
175;96
On the same date, the House of the Representatives passed House Resolution No. 17697 which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION INTO
OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph
Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and
majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria Macapagal-
Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide,
Jr.;

WHEREAS, immediately thereafter, members of the international community had extended their recognition to
Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and
reconciliation with justice for the purpose of national unity and development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by
reason of the constitutional duty of the House of Representatives as an institution and that of the individual
members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the
people a stable, continuing government and therefore must remove all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to
eliminate fractious tension, to heal social and political wounds, and to be an instrument of national
reconciliation and solidarity as it is a direct representative of the various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the House
of Representatives to extend its support and collaboration to the administration of Her Excellency, President
Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest demanding
no less: Now, therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as a partner in the attainment of the Nation's
goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SENATOR TEOFISTO

T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency of
Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy
shall nominate a Vice President from among the members of the Senate and the House of Representatives
who shall assume office upon confirmation by a majority vote of all members of both Houses voting
separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto
T. Guingona Jr., to the position of Vice President of the Republic of the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and
courage; who has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served
the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman
of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines – qualities
which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms
the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate signed
the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and
challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose
and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite
diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo
and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM. TEOFISTO T.

GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice
President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall
nominate a Vice President from among the members of the Senate and the House of Representatives who
shall assume office upon confirmation by a majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto
T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and courage;
who has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having served the
government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of
the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the land - which qualities merit
his nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as
Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus officio and
has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday, January 16
and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second envelope" be transferred
to the Archives of the Senate for proper safekeeping and preservation in accordance with the Rules of the
Senate. Disposition and retrieval thereof shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the
Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the
regular election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13th) highest number
of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector
of government, and without any support from the Armed Forces of the Philippines and the Philippine National
Police, the petitioner continues to claim that his inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent
Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner
Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner
Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as
president of the Philippines. Following Tañada v. Cuenco,102 we hold that this Court cannot exercise its judicial
power or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative
xxx branch of the government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable
or a lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot pass
upon petitioner's claim of inability to discharge the power and duties of the presidency. The question is
political in nature and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a
President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to
rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal branch
of government cannot be reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings
against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of
Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued petitioner W.
Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police
and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to
deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch
the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and
unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could
walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or
legislatures. This does not mean, either that a person injured by the executive authority by an act unjustifiable
under the law has n remedy, but must submit in silence. On the contrary, it means, simply, that the governors-
general, like the judges if the courts and the members of the Legislature, may not be personally mulcted in civil
damages for the consequences of an act executed in the performance of his official duties. The judiciary has
full power to, and will, when the mater is properly presented to it and the occasion justly warrants it, declare
an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who
has been deprived his liberty or his property by such act. This remedy is assured to every person, however
humble or of whatever country, when his personal or property rights have been invaded, even by the highest
authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally in
damages which result from the performance of his official duty, any more than it can a member of the
Philippine Commission of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in
relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the
discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy
between such liability and that of the Governor-General, that the latter is liable when he acts in a case so
plainly outside of his power and authority that he can not be said to have exercised discretion in determining
whether or not he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority, provided he
actually used discretion and judgement, that is, the judicial faculty, in determining whether he had authority to
act or not. In other words, in determining the question of his authority. If he decide wrongly, he is still
protected provided the question of his authority was one over which two men, reasonably qualified for that
position, might honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-General but as a
private individual, and as such must answer for the consequences of his act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit,
viz "xxx. Action upon important matters of state delayed; the time and substance of the chief executive spent
in wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for
the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of
government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then
came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973
Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity.
Section 17, Article VII stated:
"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official
acts done by him or by others pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this
Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's
Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel, former
Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this
constitutional amendment on the existing law on executive privilege. To quote his disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the absolute
immunity concept. First, we extended it to shield the President not only form civil claims but also from criminal
cases and other claims. Second, we enlarged its scope so that it would cover even acts of the President outside
the scope of official duties. And third, we broadened its coverage so as to include not only the President but
also other persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute immunity defense
syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of
Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos
violated the principle that a public office is a public trust. He denounced the immunity as a return to the
anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power
revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive
immunity provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity provision
for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out second
sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But
would the Committee members not agree to a restoration of at least the first sentence that the President shall
be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now facing litigation's
almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during
his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to
make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he
cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The
impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that
led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83
"Recognizing that the Impeachment Court is Functus Officio."109 Since, the Impeachment Court is now
functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted
before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a
submission has nothing to commend itself for it will place him in a better situation than a non-sitting President
who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution.
To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings
have become moot due to the resignation of the President, the proper criminal and civil cases may already be
filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for
example, and the President resigns before judgement of conviction has been rendered by the impeachment
court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would
render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may
continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune from
suit or from being brought to court during the period of their incumbency and tenure" but not beyond.
Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted
and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his
criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His
reliance on the case of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have a
different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases
filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any
decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure
immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful
acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer
who acts illegally is not acting as such but stands in the same footing as any trespasser.114
Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to
expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the
1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to produce
certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of
President Nixon's associates were facing charges of conspiracy to obstruct Justice and other offenses, which
were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel
during the 972 presidential campaign. President Nixon himself was named an unindicted co-conspirator.
President Nixon moved to quash the subpoena on the ground, among others, that the President was not
subject to judicial process and that he should first be impeached and removed from office before he could be
made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that
"when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due
process of law in the fair administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald,116 the US
Supreme Court further held that the immunity of the president from civil damages covers only "official acts."
Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones117
where it held that the US President's immunity from suits for money damages arising out of their official acts is
inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our
jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.118 It
declared as a state policy that "the State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruptio."119 it ordained that "public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency act with patriotism and justice, and lead modest lives."120 It set the rule that 'the right
of the State to recover properties unlawfully acquired by public officials or employees, from them or from their
nominees or transferees, shall not be barred by prescription, latches or estoppel."121 It maintained the
Sandiganbayan as an anti-graft court.122 It created the office of the Ombudsman and endowed it with
enormous powers, among which is to "investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act or omission appears to be illegal,
unjust improper or inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These
constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys
immunity from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits
that the respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right
to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach the
problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop
criminal trials when the right of an accused to fair trial suffers a threat.126 The American approach is different.
US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an
accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial;
probability of irreparable harm, strong likelihood, clear and present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul
convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of
Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity.
It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile
and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not
incompatible to a free press. To be sure, responsible reporting enhances accused's right to a fair trial for, as
well pointed out, a responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of
appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds
of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of
the art of our communication system brings news as they happen straight to our breakfast tables and right to
our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our
idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not
installed the jury system whose members are overly protected from publicity lest they lose there impartially.
xxx xxx xxx. Our judges are learned in the law and trained to disregard off-court evidence and on-camera
performances of parties to litigation. Their mere exposure to publications and publicity stunts does not per se
fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of
publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we
rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at a bar, the records do not
show that the trial judge developed actual bias against appellants as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the
trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of change even by
evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not
discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.130 and its
companion cases, viz:
"Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the substantial
risk to their liberty while undergoing a preliminary investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its
excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few
cases can match the high volume and high velocity of publicity that attended the preliminary investigation of
the case at bar. Our daily diet of facts and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case – the NBI, the respondents, their lawyers and their sympathizers have
participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding,
criminal trials cannot be completely closed to the press and public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, it was

xxx

The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates
conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England
had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all
concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or
partiality. In addition, the significant community therapeutic value of public trials was recognized when a
shocking crime occurs a community reaction of outrage and public protest often follows, and thereafter the
open processes of justice serve an important prophylactic purpose, providing an outlet for community
concern, hostility and emotion. To work effectively, it is important that society's criminal process satisfy the
appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be
provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported
by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in
the very nature of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United States, 362 US
610, 4 L Ed 2d 989, 80 S Ct 1038.
The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment, share a common
core purpose of assuring freedom of communication on matters relating to the functioning of government. In
guaranteeing freedom such as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to
receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing
alone, prohibit government from summarily closing courtroom doors which had long been open to the public
at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been
regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which the draftsmen deliberately linked it. A trial courtroom is a public place where
the people generally and representatives of the media have a right to be present, and where their presence
historically has been thought to enhance the integrity and quality of what takes place.
Even though the Constitution contains no provision which be its terms guarantees to the public the right to
attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the
guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive
an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to
warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the
records that will prove that the tone and content of the publicity that attended the investigation of petitioners
fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal
effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they
can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable
indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly
adduced by the parties. The length of time the investigation was conducted despite its summary nature and
the generosity with which they accommodated the discovery motions of petitioners speak well of their
fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on
the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than
hostile headlines to discharge his burden of proof.131 He needs to show more weighty social science evidence
to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases
against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the
office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the
minds of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court
cannot second guess whether its recommendation will be unfavorable to the petitioner.1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote
petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news
reports, and he has buckled to the threats and pressures directed at him by the mobs."132 News reports have
also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the
petitioner133 and it is postulated that the prosecutors investigating the petitioner will be influenced by this
bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports
referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the
denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and
regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative
prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth,
our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to make their own
findings and recommendations albeit they are reviewable by their superiors.134 They can be reversed but they
can not be compelled cases which they believe deserve dismissal. In other words, investigating prosecutors
should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file
the cases against the petitioner and the latter believes that the findings of probable cause against him is the
result of bias, he still has the remedy of assailing it before the proper court.
VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different
dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the
majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more
threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute
the guilty and the right of an accused to a fair investigation and trial which has been categorized as the "most
fundamental of all freedoms."135 To be sure, the duty of a prosecutor is more to do justice and less to
prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-
free atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient vehemence of
the majority." Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not
by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of
the majority is not and should never be the definition of the rule of law. If democracy has proved to be the
best form of government, it is because it has respected the right of the minority to convince the majority that
it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's progress
from the cave to civilization. Let us not throw away that key just to pander to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-
Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.
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.

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 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 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 A series 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 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.

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.

As for "pattern," we agree with the observations of the Sandiganbayan9 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.12 It 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

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 Act for 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.

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 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 -

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.

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.
G.R. No. 73155 July 11, 1986

PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO GASTON, CONCHITA MINAYA,
TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO LACSON, FE HOFILENA, EMILY JISON,
NIEVES LOPEZ AND CECILIA MAGSAYSAY, petitioners,
vs.
THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS OCCIDENTAL, respondents.

Gamboa & Hofileña Law Office for petitioners.

ALAMPAY, J.:

Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province in the Island of
Negros to be known as the Province of Negros del Norte, which took effect on December 3, 1985, Petitioners
herein, who are residents of the Province of Negros Occidental, in the various cities and municipalities therein,
on December 23, 1985, filed with this Court a case for Prohibition for the purpose of stopping respondents
Commission on Elections from conducting the plebiscite which, pursuant to and in implementation of the
aforesaid law, was scheduled for January 3, 1986. Said law provides:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Taboso, Escalante,
Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of
Negros, are hereby separated from the province to be known as the Province of Negros del Norte.

SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of
Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion to
the Island of Negros on the west, north and east, comprising a territory of 4,019.95 square kilometers more or
less.

SEC. 3. The seat of government of the new province shall be the City of Cadiz.
SEC. 4. A plebiscite shall be conducted in the proposed new province which are the areas affected within a
period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of
the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President of the
Philippines shall appoint the first officials of the province.

SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite herein provided, the expenses
for which shall be charged to local funds.

SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24)

Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in complete accord with the
Local Government Code as in Article XI, Section 3 of our Constitution, it is expressly mandated that—

See. 3. No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code, and
subject to the approval by a majority of the votes in a plebiscite in the unit or units affected.

Section 197 of the Local Government Code enumerates the conditions which must exist to provide the legal
basis for the creation of a provincial unit and these requisites are:

SEC. 197. Requisites for Creation. A province may be created if it has a territory of at least three thousand five
hundred square kilometers, a population of at least five hundred thousand persons, an average estimated
annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three
consecutive years, and its creation shall not reduce the population and income of the mother province or
provinces at the time of said creation to less than the minimum requirements under this section. The territory
need not be contiguous if it comprises two or more islands.

The average estimated annual income shall include the income alloted for both the general and infrastructural
funds, exclusive of trust funds, transfers and nonrecurring income. (Rollo, p. 6)

Due to the constraints brought about by the supervening Christmas holidays during which the Court was in
recess and unable to timely consider the petition, a supplemental pleading was filed by petitioners on January
4, 1986, averring therein that the plebiscite sought to be restrained by them was held on January 3, 1986 as
scheduled but that there are still serious issues raised in the instant case affecting the legality, constitutionality
and validity of such exercise which should properly be passed upon and resolved by this Court.

The plebiscite was confined only to the inhabitants of the territory of Negros del Nrte, namely: the Cities of
Silay, Cadiz, and San Carlos, and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias,
E.B. Magalona and Don Salvador Benedicto. Because of the exclusions of the voters from the rest of the
province of Negros Occidental, petitioners found need to change the prayer of their petition "to the end that
the constitutional issues which they have raised in the action will be ventilated and given final resolution.'"At
the same time, they asked that the effects of the plebiscite which they sought to stop be suspended until the
Supreme Court shall have rendered its decision on the very fundamental and far-reaching questions that
petitioners have brought out.
Acknowledging in their supplemental petition that supervening events rendered moot the prayer in their initial
petition that the plebiscite scheduled for January 3, 1986, be enjoined, petitioners plead, nevertheless, that-

... a writ of Prohibition be issued, directed to Respondent Commission on Elections to desist from issuing
official proclamation of the results of the plebiscite held on January 3, 1986.

Finding that the exclusion and non-participation of the voters of the Province of Negros Occidental other than
those living within the territory of the new province of Negros del Norte to be not in accordance with the
Constitution, that a writ of mandamus be issued, directed to the respondent Commission on Elections, to
schedule the holding of another plebiscite at which all the qualified voters of the entire Province of Negros
Occidental as now existing shall participate, at the same time making pronouncement that the plebiscite held
on January 3, 1986 has no legal effect, being a patent legal nullity;

And that a similar writ of Prohibition be issued, directed to the respondent Provincial Treasurer, to desist from
ordering the release of any local funds to answer for expenses incurred in the holding of such plebiscite until
ordered by the Court. (Rollo pp. 9-10).

Petitioners further prayed that the respondent COMELEC hold in abeyance the issuance of any official
proclamation of the results of the aforestated plebiscite.

During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this case (dated
December 27, 1985 and filed with the Court on January 2, 1986) was submitted by former Senator Ambrosio
Padilla. Said motion was granted in Our resolution of January 2, 1986.

Acting on the petition, as well as on the supplemental petition for prohibition with preliminary injunction with
prayer for restraining order, the Court, on January 7, 1986 resolved, without giving due course to the same, to
require respondents to comment, not to file a motion to dismiss. Complying with said resolution, public
respondents, represented by the Office of the Solicitor General, on January 14, 1986, filed their Comment,
arguing therein that the challenged statute.-Batas Pambansa 885, should be accorded the presumption of
legality. They submit that the said law is not void on its face and that the petition does not show a clear,
categorical and undeniable demonstration of the supposed infringement of the Constitution. Respondents
state that the powers of the Batasang-Pambansa to enact the assailed law is beyond question. They claim that
Batas Pambansa Big. 885 does not infringe the Constitution because the requisites of the Local Government
Code have been complied with. Furthermore, they submit that this case has now become moot and academic
with the proclamation of the new Province of Negros del Norte.

Respondents argue that the remaining cities and municipalities of the Province of Negros Occidental not
included in the area of the new Province of Negros del Norte, de not fall within the meaning and scope of the
term "unit or units affected", as referred to in Section 3 of Art. XI of our Constitution. On this reasoning,
respondents maintain that Batas Pambansa Blg. 885 does not violate the Constitution, invoking and citing the
case of Governor Zosimo Paredes versus the Honorable Executive Secretary to the President, et al. (G.R. No.
55628, March 2, 1984 (128 SCRA 61), particularly the pronouncements therein, hereunder quoted:

1. Admittedly,this is one of those cases where the discretion of the Court is allowed considerable leeway. There
is indeed an element of ambiguity in the use of the expression 'unit or units affected'. It is plausible to assert as
petitioners do that when certain Barangays are separated from a parent municipality to form a new one, all the
voters therein are affected. It is much more persuasive, however, to contend as respondents do that the
acceptable construction is for those voters, who are not from the barangays to be separated, should be
excluded in the plebiscite.

2. For one thing, it is in accordance with the settled doctrine that between two possible constructions, one
avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be preferred.
That which will save, not that which will destroy, commends itself for acceptance. After all, the basic
presumption all these years is one of validity. ...

3. ... Adherence to such philosophy compels the conclusion that when there are indications that the
inhabitants of several barangays are inclined to separate from a parent municipality they should be allowed to
do so. What is more logical than to ascertain their will in a plebiscite called for that purpose. It is they, and they
alone, who shall constitute the new unit. New responsibilities will be assumed. New burdens will be imposed.
A new municipal corporation will come into existence. Its birth will be a matter of choice-their choice. They
should be left alone then to decide for themselves. To allow other voters to participate will not yield a true
expression of their will. They may even frustrate it, That certainly will be so if they vote against it for selfish
reasons, and they constitute the majority. That is not to abide by the fundamental principle of the Constitution
to promote local autonomy, the preference being for smaller units. To rule as this Tribunal does is to follow an
accepted principle of constitutional construction, that in ascertaining the meaning of a particular provision that
may give rise to doubts, the intent of the framers and of the people may be gleaned from provisions in pari
materia.

Respondents submit that said ruling in the aforecited case applies equally with force in the case at bar.
Respondents also maintain that the requisites under the Local Government Code (P.D. 337) for the creation of
the new province of Negros del Norte have all been duly complied with, Respondents discredit petitioners'
allegations that the requisite area of 3,500 square kilometers as so prescribed in the Local Government Code
for a new province to be created has not been satisfied. Petitioners insist that the area which would comprise
the new province of Negros del Norte, would only be about 2,856.56 square kilometers and which evidently
would be lesser than the minimum area prescribed by the governing statute. Respondents, in this regard, point
out and stress that Section 2 of Batas Pambansa Blg. 885 creating said new province plainly declares that the
territorial boundaries of Negros del Norte comprise an area of 4,019.95 square kilometers, more or less.

As a final argument, respondents insist that instant petition has been rendered moot and academic
considering that a plebiscite has been already conducted on January 3, 1986; that as a result thereof, the
corresponding certificate of canvass indicated that out of 195,134 total votes cast in said plebiscite, 164,734
were in favor of the creation of Negros del Norte and 30,400 were against it; and because "the affirmative
votes cast represented a majority of the total votes cast in said plebiscite, the Chairman of the Board of
Canvassers proclaimed the new province which shall be known as "Negros del Norte". Thus, respondents stress
the fact that following the proclamation of Negros del Norte province, the appointments of the officials of said
province created were announced. On these considerations, respondents urge that this case should be
dismissed for having been rendered moot and academic as the creation of the new province is now a "fait
accompli."

In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to by the
parties herein or stand unchallenged.
Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental has not
disbursed, nor was required to disburse any public funds in connection with the plebiscite held on January 3,
1986 as so disclosed in the Comment to the Petition filed by the respondent Provincial Treasurer of Negros
Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the petitioners that said Provincial
Treasurer be directed by this Court to desist from ordering the release of any public funds on account of such
plebiscite should not longer deserve further consideration.

Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885 and the
creation of the new Province of Negros del Norte, it expressly declared in Sec. 2 of the aforementioned
Parliamentary Bill, the following:

SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of
Salvador Benedicto and the City of San Carlos on the South and the natural boundaries of the northern portion
of the Island of Negros on the West, North and East, containing an area of 285,656 hectares more or less.
(Emphasis supplied).

However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa Blg. 885, the
boundaries of the new Province of Negros del Norte were defined therein and its boundaries then stated to be
as follows:

SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Toboso, Escalante,
Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of
Negros, are hereby separated from the Province of Negros Occidental and constituted into a new province to
be known as the Province of Negros del Norte.

SEC. 1. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of
Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion of
the Island of Negros on the West, North and East, comprising a territory of 4,019.95 square kilometers more or
less.

Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer Julian L.
Ramirez of the Province of Negros Occidental, dated July 16, 1985, it was therein certified as follows:

xxx xxx xxx

This is to certify that the following cities and municipalities of Negros Occidental have the land area as
indicated hereunder based on the Special Report No. 3, Philippines 1980, Population, Land Area and Density:
1970, 1975 and 1980 by the National Census and Statistics Office, Manila.

Land Area

(Sq. Km.)

1. Silay City ...................................................................214.8

2. E.B. Magalona............................................................113.3
3. Victorias.....................................................................133.9

4. Manapla......................................................................112.9

5. Cadiz City ..................................................................516.5

6. Sagay .........................................................................389.6

7. Escalante ....................................................................124.0

8. Toboso.......................................................................123.4

9. Calatrava.....................................................................504.5

10. San Carlos City...........................................................451.3

11. Don Salvador Benedicto.................................... (not available)

This certification is issued upon the request of Dr. Patricio Y. Tan for whatever purpose it may serve him.

(SGD.) JULIAN L. RAMIREZ

Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).

Although in the above certification it is stated that the land area of the relatively new municipality of Don
Salvador Benedicto is not available, it is an uncontradicted fact that the area comprising Don Salvador
municipality, one of the component units of the new province, was derived from the City of San Carlos and
from the Municipality of Calatrava, Negros Occidental, and added thereto was a portion of about one-fourth
the land area of the town of Murcia, Negros Occidental. It is significant to note the uncontroverted submission
of petitioners that the total land area of the entire municipality of Murcia, Negros Occidental is only 322.9
square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land area of Murcia that was added to the
portions derived from the land area of Calatrava, Negros Occidental and San Carlos City (Negros Occidental)
would constitute, therefore, only 80.2 square kilometers. This area of 80.2 square kilometers if then added to
2,685.2 square kilometers, representing the total land area of the Cities of Silay, San Carlos and Cadiz and the
Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in
approximately an area of only 2,765.4 square kilometers using as basis the Special Report, Philippines 1980,
Population, Land Area and Density: 1970, 1975 and 1980 of the National Census and Statistics Office, Manila
(see Exhibit "C", Rollo, p. 90).

No controversion has been made by respondent with respect to the allegations of petitioners that the original
provision in the draft legislation, Parliamentary Bill No. 3644, reads:

SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days
from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a
majority of the votes cast in such plebiscite, the President shall appoint the first officials of the new province.
However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above provision.
The statute, as modified, provides that the requisite plebiscite "shall be conducted in the proposed new
province which are the areas affected."

It is this legislative determination limiting the plebiscite exclusively to the cities and towns which would
comprise the new province that is assailed by the petitioners as violative of the provisions of our Constitution.
Petitioners submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would be held in the unit or units
affected by the creation of the new province as a result of the consequent division of and substantial alteration
of the boundaries of the existing province. In this instance, the voters in the remaining areas of the province of
Negros Occidental should have been allowed to participate in the questioned plebiscite.

Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional
requisites, the fact that such plebiscite had been held and a new province proclaimed and its officials
appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of the
existence of this newly proclaimed province which petitioners strongly profess to have been illegally born,
deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its creation, the
commission of that error should not provide the very excuse for perpetuation of such wrong. For this Court to
yield to the respondents' urging that, as there has been fait accompli then this Court should passively accept
and accede to the prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as
respondents so propose is a proposition fraught with mischief. Respondents' submission will create a
dangerous precedent. Should this Court decline now to perform its duty of interpreting and indicating what
the law is and should be, this might tempt again those who strut about in the corridors of power to recklessly
and with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions, either
brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their acts if
they manage to bring about a fait accompli.

In the light of the facts and circumstances alluded to by petitioners as attending to the unusually rapid creation
of the instant province of Negros del Norte after a swiftly scheduled plebiscite, this Tribunal has the duty to
repudiate and discourage the commission of acts which run counter to the mandate of our fundamental law,
done by whatever branch of our government. This Court gives notice that it will not look with favor upon those
who may be hereafter inclined to ram through all sorts of legislative measures and then implement the same
with indecent haste, even if such acts would violate the Constitution and the prevailing statutes of our land. It
is illogical to ask that this Tribunal be blind and deaf to protests on the ground that what is already done is
done. To such untenable argument the reply would be that, be this so, the Court, nevertheless, still has the
duty and right to correct and rectify the wrong brought to its attention.

On the merits of the case.

Aside from the simpler factual issue relative to the land area of the new province of Negros del Norte, the
more significant and pivotal issue in the present case revolves around in the interpretation and application in
the case at bar of Article XI, Section 3 of the Constitution, which being brief and for convenience, We again
quote:
SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code, and
subject to the approval by a majority of the votes in a plebiscite in the unit or units affected.

It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first
obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a
province is created, divided or merged and there is substantial alteration of the boundaries. It is thus
inescapable to conclude that the boundaries of the existing province of Negros Occidental would necessarily
be substantially altered by the division of its existing boundaries in order that there can be created the
proposed new province of Negros del Norte. Plain and simple logic will demonstrate than that two political
units would be affected. The first would be the parent province of Negros Occidental because its boundaries
would be substantially altered. The other affected entity would be composed of those in the area subtracted
from the mother province to constitute the proposed province of Negros del Norte.

We find no way to reconcile the holding of a plebiscite that should conform to said constitutional requirement
but eliminates the participation of either of these two component political units. No amount of rhetorical
flourishes can justify exclusion of the parent province in the plebiscite because of an alleged intent on the part
of the authors and implementors of the challenged statute to carry out what is claimed to be a mandate to
guarantee and promote autonomy of local government units. The alleged good intentions cannot prevail and
overrule the cardinal precept that what our Constitution categorically directs to be done or imposes as a
requirement must first be observed, respected and complied with. No one should be allowed to pay homage
to a supposed fundamental policy intended to guarantee and promote autonomy of local government units
but at the same time transgress, ignore and disregard what the Constitution commands in Article XI Section 3
thereof. Respondents would be no different from one who hurries to pray at the temple but then spits at the
Idol therein.

We find no merit in the submission of the respondents that the petition should be dismissed because the
motive and wisdom in enacting the law may not be challenged by petitioners. The principal point raised by the
petitioners is not the wisdom and motive in enacting the law but the infringement of the Constitution which is
a proper subject of judicial inquiry.

Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say the least, are most
enlightening and provoking but are factual issues the Court cannot properly pass upon in this case. Mention by
petitioners of the unexplained changes or differences in the proposed Parliamentary Bill No. 3644 and the
enacted Batas Pambansa Blg. 885; the swift and surreptitious manner of passage and approval of said law; the
abrupt scheduling of the plebiscite; the reference to news articles regarding the questionable conduct of the
said plebiscite held on January 3, 1986; all serve as interesting reading but are not the decisive matters which
should be reckoned in the resolution of this case.

What the Court considers the only significant submissions lending a little support to respondents' case is their
reliance on the rulings and pronouncements made by this Court in the case of Governor Zosimo Paredes versus
The Honorable Executive Secretary to the President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said
case relating to a plebiscite held to ratify the creation of a new municipality from existing barangays, this Court
upheld the legality of the plebiscite which was participated in exclusively by the people of the barangay that
would constitute the new municipality.
This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly significant
are the prefatory statements therein stating that said case is "one of those cases where the discretion of the
Court is allowed considerable leeway" and that "there is indeed an element of ambiguity in the use of the
expression unit or units affected." The ruling rendered in said case was based on a claimed prerogative of the
Court then to exercise its discretion on the matter. It did not resolve the question of how the pertinent
provision of the Constitution should be correctly interpreted.

The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al. (supra) should not be
taken as a doctrinal or compelling precedent when it is acknowledged therein that "it is plausible to assert, as
petitioners do, that when certain Barangays are separated from a parent municipality to form a new one, all
the voters therein are affected."

It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive Secretary, invoked
by respondents, We find very lucidly expressed the strong dissenting view of Justice Vicente Abad Santos, a
distinguished member of this Court, as he therein voiced his opinion, which We hereunder quote:

2. ... when the Constitution speaks of "the unit or units affected" it means all of the people of the municipality
if the municipality is to be divided such as in the case at bar or an of the people of two or more municipalities
if there be a merger. I see no ambiguity in the Constitutional provision.

This dissenting opinion of Justice Vicente Abad Santos is the— forerunner of the ruling which We now consider
applicable to the case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the Honorable Commission on
Elections, L-56022, May 31, 1985, 136 SCRA 633, this dissent was reiterated by Justice Abad Santos as he
therein assailed as suffering from a constitutional infirmity a referendum which did not include all the people
of Bulacan and Rizal, when such referendum was intended to ascertain if the people of said provinces were
willing to give up some of their towns to Metropolitan Manila. His dissenting opinion served as a useful
guideline in the instant case.

Opportunity to re-examine the views formerly held in said cases is now afforded the present Court. The
reasons in the mentioned cases invoked by respondents herein were formerly considered acceptable because
of the views then taken that local autonomy would be better promoted However, even this consideration no
longer retains persuasive value.

The environmental facts in the case before Us readily disclose that the subject matter under consideration is of
greater magnitude with concomitant multifarious complicated problems. In the earlier case, what was involved
was a division of a barangay which is the smallest political unit in the Local Government Code. Understandably,
few and lesser problems are involved. In the case at bar, creation of a new province relates to the largest
political unit contemplated in Section 3, Art. XI of the Constitution. To form the new province of Negros del
Norte no less than three cities and eight municipalities will be subtracted from the parent province of Negros
Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the land area of an
existing province whose boundaries will be consequently substantially altered. It becomes easy to realize that
the consequent effects cf the division of the parent province necessarily will affect all the people living in the
separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the
parent province as well as that of the new province will be inevitably affected, either for the better or for the
worse. Whatever be the case, either or both of these political groups will be affected and they are, therefore,
the unit or units referred to in Section 3 of Article XI of the Constitution which must be included in the
plebiscite contemplated therein.

It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise to
doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari materia."
Parliamentary Bill No. 3644 which proposed the creation of the new province of Negros del Norte recites in
Sec. 4 thereof that "the plebiscite shall be conducted in the areas affected within a period of one hundred and
twenty days from the approval of this Act." As this draft legislation speaks of "areas," what was contemplated
evidently are plurality of areas to participate in the plebiscite. Logically, those to be included in such plebiscite
would be the people living in the area of the proposed new province and those living in the parent province.
This assumption will be consistent with the requirements set forth in the Constitution.

We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644 was enacted
into Batas Pambansa Blg. 885 so that it is now provided in said enabling law that the plebiscite "shall be
conducted in the proposed new province which are the areas affected." We are not disposed to agree that by
mere legislative fiat the unit or units affected referred in the fundamental law can be diminished or restricted
by the Batasang Pambansa to cities and municipalities comprising the new province, thereby ignoring the
evident reality that there are other people necessarily affected.

In the mind of the Court, the change made by those responsible for the enactment of Batas Pambansa Blg. 885
betrays their own misgivings. They must have entertained apprehensions that by holding the plebiscite only in
the areas of the new proposed province, this tactic will be tainted with illegality. In anticipation of a possible
strong challenge to the legality of such a plebiscite there was, therefore, deliberately added in the enacted
statute a self-serving phrase that the new province constitutes the area affected. Such additional statement
serves no useful purpose for the same is misleading, erroneous and far from truth. The remaining portion of
the parent province is as much an area affected. The substantial alteration of the boundaries of the parent
province, not to mention the other adverse economic effects it might suffer, eloquently argue the points raised
by the petitioners.

Petitioners have averred without contradiction that after the creation of Negros del Norte, the province of
Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and San Carlos, as well as
the municipality of Victorias. No controversion has been made regarding petitioners' assertion that the areas
of the Province of Negros Occidental will be diminished by about 285,656 hectares and it will lose seven of the
fifteen sugar mills which contribute to the economy of the whole province. In the language of petitioners, "to
create Negros del Norte, the existing territory and political subdivision known as Negros Occidental has to be
partitioned and dismembered. What was involved was no 'birth' but "amputation." We agree with the
petitioners that in the case of Negros what was involved was a division, a separation; and consequently, as Sec.
3 of Article XI of the Constitution anticipates, a substantial alteration of boundary.

As contended by petitioners,—

Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the constitutional provision do not
contemplate distinct situation isolated from the mutually exclusive to each other. A Province maybe created
where an existing province is divided or two provinces merged. Such cases necessarily will involve existing unit
or units abolished and definitely the boundary being substantially altered.
It would thus be inaccurate to state that where an existing political unit is divided or its boundary substantially
altered, as the Constitution provides, only some and not all the voters in the whole unit which suffers
dismemberment or substantial alteration of its boundary are affected. Rather, the contrary is true.

It is also Our considered view that even hypothetically assuming that the merits of this case can depend on the
mere discretion that this Court may exercise, nevertheless, it is the petitioners' case that deserve to be
favored.

It is now time for this Court to set aside the equivocations and the indecisive pronouncements in the adverted
case of Paredes vs. the Honorable Executive Secretary, et al. (supra). For the reasons already here express, We
now state that the ruling in the two mentioned cases sanctioning the exclusion of the voters belonging to an
existing political unit from which the new political unit will be derived, from participating in the plebiscite
conducted for the purpose of determining the formation of another new political unit, is hereby abandoned.

In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of mandamus
be issued, directing the respondent Commission on Elections, to schedule the holding of another plebiscite at
which all the qualified voters of the entire province of Negros Occidental as now existing shall participate and
that this Court make a pronouncement that the plebiscite held on January 3, 1986 has no legal effect for being
a patent nullity.

The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and violative of
the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however, disposed to direct the
conduct of a new plebiscite, because We find no legal basis to do so. With constitutional infirmity attaching to
the subject Batas Pambansa Big. 885 and also because the creation of the new province of Negros del Norte is
not in accordance with the criteria established in the Local Government Code, the factual and legal basis for
the creation of such new province which should justify the holding of another plebiscite does not exist.

Whatever claim it has to validity and whatever recognition has been gained by the new province of Negros del
Norte because of the appointment of the officials thereof, must now be erased. That Negros del Norte is but a
legal fiction should be announced. Its existence should be put to an end as quickly as possible, if only to settle
the complications currently attending to its creation. As has been manifested, the parent province of Negros
del Norte has been impleaded as the defendant in a suit filed by the new Province of Negros del Norte, before
the Regional Trial Court of Negros (del Norte), docketed as Civil Case No. 169-C, for the immediate allocation,
distribution and transfer of funds by the parent province to the new province, in an amount claimed to be at
least P10,000,000.00.

The final nail that puts to rest whatever pretension there is to the legality of the province of Negros del Norte
is the significant fact that this created province does not even satisfy the area requirement prescribed in
Section 197 of the Local Government Code, as earlier discussed.

It is of course claimed by the respondents in their Comment to the exhibits submitted by the petitioners (Exhs.
C and D, Rollo, pp. 19 and 91), that the new province has a territory of 4,019.95 square kilometers, more or
less. This assertion is made to negate the proofs submitted, disclosing that the land area of the new province
cannot be more than 3,500 square kilometers because its land area would, at most, be only about 2,856
square kilometers, taking into account government statistics relative to the total area of the cities and
municipalities constituting Negros del Norte. Respondents insist that when Section 197 of the Local
Government Code speaks of the territory of the province to be created and requires that such territory be at
least 3,500 square kilometers, what is contemplated is not only the land area but also the land and water over
which the said province has jurisdiction and control. It is even the submission of the respondents that in this
regard the marginal sea within the three mile limit should be considered in determining the extent of the
territory of the new province. Such an interpretation is strained, incorrect, and fallacious.

The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory
need not be contiguous if it comprises two or more islands." The use of the word territory in this particular
provision of the Local Government Code and in the very last sentence thereof, clearly reflects that "territory"
as therein used, has reference only to the mass of land area and excludes the waters over which the political
unit exercises control.

Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b)
touching along all or most of one side; (c) near, text, or adjacent (Webster's New World Dictionary, 1972 Ed., p.
307). "Contiguous", when employed as an adjective, as in the above sentence, is only used when it describes
physical contact, or a touching of sides of two solid masses of matter. The meaning of particular terms in a
statute may be ascertained by reference to words associated with or related to them in the statute (Animal
Rescue League vs. Assessors, 138 A.L.R. p. 110). Therefore, in the context of the sentence above, what need
not be "contiguous" is the "territory" the physical mass of land area. There would arise no need for the
legislators to use the word contiguous if they had intended that the term "territory" embrace not only land
area but also territorial waters. It can be safely concluded that the word territory in the first paragraph of
Section 197 is meant to be synonymous with "land area" only. The words and phrases used in a statute should
be given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words are used
furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).

The distinction between "territory" and "land area" which respondents make is an artificial or strained
construction of the disputed provision whereby the words of the statute are arrested from their plain and
obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust result. The plain
meaning in the language in a statute is the safest guide to follow in construing the statute. A construction
based on a forced or artificial meaning of its words and out of harmony of the statutory scheme is not to be
favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).

It would be rather preposterous to maintain that a province with a small land area but which has a long,
narrow, extended coast line, (such as La Union province) can be said to have a larger territory than a land-
locked province (such as Ifugao or Benguet) whose land area manifestly exceeds the province first mentioned.

Allegations have been made that the enactment of the questioned state was marred by "dirty tricks", in the
introduction and passing of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister designs to achieve
"pure and simple gerrymandering; "that recent happenings more than amply demonstrate that far from
guaranteeing its autonomy it (Negros del Norte) has become the fiefdom of a local strongman" (Rollo, p. 43;
emphasis supplied).

It is not for this Court to affirm or reject such matters not only because the merits of this case can be resolved
without need of ascertaining the real motives and wisdom in the making of the questioned law. No proper
challenge on those grounds can also be made by petitioners in this proceeding. Neither may this Court venture
to guess the motives or wisdom in the exercise of legislative powers. Repudiation of improper or unwise
actions taken by tools of a political machinery rests ultimately, as recent events have shown, on the electorate
and the power of a vigilant people.

Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros Occidental
and even by our Nation. Commendable is the patriotism displayed by them in daring to institute this case in
order to preserve the continued existence of their historic province. They were inspired undoubtedly by their
faithful commitment to our Constitution which they wish to be respected and obeyed. Despite the setbacks
and the hardships which petitioners aver confronted them, they valiantly and unfalteringly pursued a worthy
cause. A happy destiny for our Nation is assured as long as among our people there would be exemplary
citizens such as the petitioners herein.

WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the new
province of Negros del Norte, as well as the appointment of the officials thereof are also declared null and
void.

SO ORDERED.

Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras, JJ., concur.

Melencio-Herrera, J., concurs in the result.

G.R. No. L-44143 August 31, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
EUSEBIO NAZARIO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Teofilo Ragodon for accused-appellant.

SARMIENTO, J.:

The petitioner was charged with violation of certain municipal ordinances of the municipal council of Pagbilao,
in Quezon province. By way of confession and avoidance, the petitioner would admit having committed the
acts charged but would claim that the ordinances are unconstitutional, or, assuming their constitutionality,
that they do not apply to him in any event.

The facts are not disputed:

This defendant is charged of the crime of Violation of Municipal Ordinance in an information filed by the
provincial Fiscal, dated October 9, 1968, as follows:

That in the years 1964, 1965 and 1966, in the Municipality of Pagbilao, Province of Quezon, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, being then the owner and operator
of a fishpond situated in the barrio of Pinagbayanan, of said municipality, did then and there willfully,
unlawfully and feloniously refuse and fail to pay the municipal taxes in the total amount of THREE HUNDRED
SIXTY TWO PESOS AND SIXTY TWO CENTAVOS (P362.62), required of him as fishpond operator as provided for
under Ordinance No. 4, series of 1955, as amended, inspite of repeated demands made upon him by the
Municipal Treasurer of Pagbilao, Quezon, to pay the same.

Contrary to law.

For the prosecution the following witnesses testified in substance as follows;

MIGUEL FRANCIA, 39 years of age, married, farmer and resident of Lopez, Quezon —

In 1962 to 1967, I resided at Pinagbayanan, Pagbilao, Quezon. I know the accused as I worked in his fishpond in
1962 to 1964. The fishpond of Nazario is at Pinagbayanan, Pagbilao, Quezon. I worked in the clearing of the
fishpond, the construction of the dikes and the catching of fish.

On cross-examination, this witness declared:

I worked with the accused up to March 1964.

NICOLAS MACAROLAY, 65 years of age, married, copra maker and resident of Pinagbayanan, Pagbilao, Quezon
—

I resided at Pinagbayanan, Pagbilao, Quezon since 1959 up to the present. I know the accused since 1959 when
he opened a fishpond at Pinagbayanan, Pagbilao, Quezon. He still operates the fishpond up to the present and
I know this fact as I am the barrio captain of Pinagbayanan.

On cross-examination, this witness declared:

I came to know the accused when he first operated his fishpond since 1959.

On re-direct examination, this witness declared:

I was present during the catching of fish in 1967 and the accused was there.

On re-cross examination, this witness declared:

I do not remember the month in 1962 when the accused caught fish.

RODOLFO R. ALVAREZ, 45 years old, municipal treasurer of Pagbilao, Quezon, married —

As Municipal Treasurer I am in charge of tax collection. I know the accused even before I was Municipal
Treasurer of Pagbilao. I have written the accused a letter asking him to pay his taxes (Exhibit B). Said letter was
received by the accused as per registry return receipt, Exhibit B-1. The letter demanded for payment of
P362.00, more or less, by way of taxes which he did not pay up to the present. The former Treasurer, Ceferino
Caparros, also wrote a letter of demand to the accused (Exhibit C). On June 28, 1967, I sent a letter to the
Fishery Commission (Exhibit D), requesting information if accused paid taxes with that office. The Commission
sent me a certificate (Exhibits D-1, D-2 & D-3). The accused had a fishpond lease agreement. The taxes unpaid
were for the years 1964, 1965 and 1966.

On cross-examination, this witness declared:

I have demanded the taxes for 38.10 hectares.

On question of the court, this witness declared:

What I was collecting from the accused is the fee on fishpond operation, not rental.

The prosecution presented as part of their evidence Exhibits A, A-1, A-2, B, B-2, C, D, D-1, D-2, D-3, E, F, F-1 and
the same were admitted by the court, except Exhibits D, D-1, D-2 and D-3 which were not admitted for being
immaterial.

For the defense the accused EUSEBIO NAZARIO, 48 years of age, married, owner and general manager of the
ZIP Manufacturing Enterprises and resident of 4801 Old Sta. Mesa, Sampaloc, Manila, declared in substance as
follows:

I have lived in Sta. Mesa, Manila, since 1949. I buy my Residence Certificates at Manila or at San Juan. In 1964,
1965 and 1966, I was living in Manila and my business is in Manila and my family lives at Manila. I never
resided at Pagbilao, Quezon. I do not own a house at Pagbilao. I am a lessee of a fishpond located at Pagbilao,
Quezon, and I have a lease agreement to that effect with the Philippine Fisheries Commission marked as
Exhibit 1. In 1964, 1965 and 1966, the contract of lease, Exhibit 1, was still existing and enforceable. The
Ordinances Nos. 4, 15 and 12, series of 1955, 1965 and 1966, were translated into English by the Institute of
National Language to better understand the ordinances. There were exchange of letters between me and the
Municipal Treasurer of Pagbilao regarding the payment of the taxes on my leased fishpond situated at
Pagbilao. There was a letter of demand for the payment of the taxes by the treasurer (Exhibit 3) which I
received by mail at my residence at Manila. I answered the letter of demand, Exhibit 3, with Exhibit 3-A. I
requested an inspection of my fishpond to determine its condition as it was not then in operation. The
Municipal Treasurer Alvarez went there once in 1967 and he found that it was destroyed by the typhoon and
there were pictures taken marked as Exhibits 4, 4-A, 4-B and 4C. I received another letter of demand, Exhibit 5,
and I answered the same (Exhibit 5-A). I copied my reference quoted in Exhibit 5-A from Administrative Order
No. 6, Exhibit 6. I received another letter of demand from Tomas Ornedo, Acting Municipal Treasurer of
Pagbilao, dated February 16, 1966, Exhibit 7, and I answered the same with the letter marked as Exhibit 7-A,
dated February 26, 1966. I received another letter of demand from Treasurer Alvarez of Pagbilao, Exhibit 8, and
I answered the same (Exhibit 8-A). In 1964, I went to Treasurer Caparros to ask for an application for license tax
and he said none and he told me just to pay my taxes. I did not pay because up to now I do not know whether I
am covered by the Ordinance or not. The letters of demand asked me to pay different amounts for taxes for
the fishpond. Because under Sec. 2309 of the Revised Administrative Code, municipal taxes lapse if not paid
and they are collecting on a lapsed ordinance. Because under the Tax Code, fishermen are exempted from
percentage tax and privilege tax. There is no law empowering the municipality to pass ordinance taxing
fishpond operators.
The defense presented as part of their evidence Exhibits 1, 2, 3, 3-A, 4, 4-B, 4-B, 4-C, 5, 5-A, 6, 6-A, 6-B, 6-C, 7,
7-A, 8 and 8-A and the same were admitted by the court.

From their evidence the prosecution would want to show to the court that the accused, as lessee or operator
of a fishpond in the municipality of Pagbilao, refused, and still refuses, to pay the municipal taxes for the years
1964, 1965 and 1966, in violation of Municipal Ordinance No. 4, series of 1955, as amended by Municipal
Ordinance No. 15, series of 1965, and finally amended by Municipal Ordinance No. 12, series of 1966.

On the other hand, the accused, by his evidence, tends to show to the court that the taxes sought to be
collected have already lapsed and that there is no law empowering municipalities to pass ordinances taxing
fishpond operators. The defense, by their evidence, tried to show further that, as lessee of a forest land to be
converted into a fishpond, he is not covered by said municipal ordinances; and finally that the accused should
not be taxed as fishpond operator because there is no fishpond yet being operated by him, considering that
the supposed fishpond was under construction during the period covered by the taxes sought to be collected.

Finally, the defendant claims that the ordinance in question is ultra vires as it is outside of the power of the
municipal council of Pagbilao, Quezon, to enact; and that the defendant claims that the ordinance in question
is ambiguous and uncertain.

There is no question from the evidences presented that the accused is a lessee of a parcel of forest land, with
an area of 27.1998 hectares, for fishpond purposes, under Fishpond Lease Agreement No. 1066, entered into
by the accused and the government, through the Secretary of Agriculture and Natural Resources on August 21,
1959.

There is no question from the evidences presented that the 27.1998 hectares of land leased by the defendant
from the government for fishpond purposes was actually converted into fishpond and used as such, and
therefore defendant is an operator of a fishpond within the purview of the ordinance in question. 1

The trial Court 2 returned a verdict of guilty and disposed as follows:

VIEWED IN THE LIGHT OF ALL THE FOREGOING, the Court finds the accused guilty beyond reasonable doubt of
the crime of violation of Municipal Ordinance No. 4, series of 1955, as amended by Ordinance No. 15, series of
1965 and further amended by Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao, Quezon;
and hereby sentences him to pay a fine of P50.00, with subsidiary imprisonment in case of insolvency at the
rate of P8.00 a day, and to pay the costs of this proceeding.

SO ORDERED. 3

In this appeal, certified to this Court by the Court of Appeals, the petitioner alleges that:

I.

THE LOWER COURT ERRED IN NOT DECLARING THAT ORDINANCE NO. 4, SERIES OF 1955, AS AMENDED BY
ORDINANCE NO. 15, SERIES OF 1965, AND AS FURTHER AMENDED BY ORDINANCE NO. 12, SERIES OF 1966, OF
THE MUNICIPALITY OF PAGBILAO, QUEZON, IS NULL AND VOID FOR BEING AMBIGUOUS AND UNCERTAIN.
II.

THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION, AS AMENDED, IS
UNCONSTITUTIONAL FOR BEING EX POST FACTO.

III.

THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION COVERS ONLY OWNERS OR
OVERSEER OF FISHPONDS OF PRIVATE OWNERSHIP AND NOT TO LESSEES OF PUBLIC LANDS.

IV.

THE LOWER COURT ERRED IN NOT FINDING THAT THE QUESTIONED ORDINANCE, EVEN IF VALID, CANNOT BE
ENFORCED BEYOND THE TERRITORIAL LIMITS OF PAGBILAO AND DOES NOT COVER NON-
RESIDENTS. 4

The ordinances in question are Ordinance No. 4, series of 1955, Ordinance No. 15, series of 1965, and
Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao. Insofar as pertinent to this appeal, the
salient portions thereof are hereinbelow quoted:

Section 1. Any owner or manager of fishponds in places within the territorial limits of Pagbilao, Quezon,
shall pay a municipal tax in the amount of P3.00 per hectare of fishpond on part thereof per annum. 5

xxx xxx xxx

Sec. l (a). For the convenience of those who have or owners or managers of fishponds within the
territorial limits of this municipality, the date of payment of municipal tax relative thereto, shall begin after the
lapse of three (3) years starting from the date said fishpond is approved by the Bureau of Fisheries. 6

xxx xxx xxx

Section 1. Any owner or manager of fishponds in places within the territorial limits of Pagbilao shall pay a
municipal tax in the amount of P3.00 per hectare or any fraction thereof per annum beginning and taking
effect from the year 1964, if the fishpond started operating before the year 1964. 7

The first objection refers to the ordinances being allegedly "ambiguous and uncertain." 8 The petitioner
contends that being a mere lessee of the fishpond, he is not covered since the said ordinances speak of "owner
or manager." He likewise maintains that they are vague insofar as they reckon the date of payment: Whereas
Ordinance No. 4 provides that parties shall commence payment "after the lapse of three (3) years starting from
the date said fishpond is approved by the Bureau of Fisheries." 9 Ordinance No. 12 states that liability for the
tax accrues "beginning and taking effect from the year 1964 if the fishpond started operating before the year
1964." 10

As a rule, 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 as to its application." 11 It is repugnant
to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the
parties targetted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by
construction. Thus, in Coates v. City of Cincinnati, 12 the U.S. Supreme Court struck down an ordinance that
had made it illegal for "three or more persons to assemble on any sidewalk and there conduct themselves in a
manner annoying to persons passing by." 13 Clearly, the ordinance imposed no standard at all "because one
may never know in advance what 'annoys some people but does not annoy others.' " 14

Coates highlights what has been referred to as a "perfectly vague" 15 act whose obscurity is evident on its
face. It is to be distinguished, however, from legislation couched in imprecise language — but which
nonetheless specifies a standard though defectively phrased — in which case, it may be "saved" by proper
construction.

It must further be distinguished from statutes that are apparently ambiguous yet fairly applicable to certain
types of activities. In that event, such statutes may not be challenged whenever directed against such
activities. In Parker v. Levy, 16 a prosecution originally under the U.S. Uniform Code of Military Justice
(prohibiting, specifically, "conduct unbecoming an officer and gentleman"), the defendant, an army officer who
had urged his men not to go to Vietnam and called the Special Forces trained to fight there thieves and
murderers, was not allowed to invoke the void for vagueness doctrine on the premise that accepted military
interpretation and practice had provided enough standards, and consequently, a fair notice that his conduct
was impermissible.

It is interesting that in Gonzales v. Commission on Elections, 17 a divided Court sustained an act of Congress
(Republic Act No. 4880 penalizing "the too early nomination of candidates" 18 limiting the election campaign
period, and prohibiting "partisan political activities"), amid challenges of vagueness and overbreadth on the
ground that the law had included an "enumeration of the acts deemed included in the terms 'election
campaign' or 'partisan political activity" 19 that would supply the standards. "As thus limited, the objection
that may be raised as to vagueness has been minimized, if not totally set at rest." 20 In his opinion, however,
Justice Sanchez would stress that the conduct sought to be prohibited "is not clearly defined at all." 21 "As
worded in R.A 4880, prohibited discussion could cover the entire spectrum of expression relating to candidates
and political parties." 22 He was unimpressed with the "restrictions" Fernando's opinion had relied on: "
'Simple expressions of opinions and thoughts concerning the election' and expression of 'views on current
political problems or issues' leave the reader conjecture, to guesswork, upon the extent of protection offered,
be it as to the nature of the utterance ('simple expressions of opinion and thoughts') or the subject of the
utterance ('current political problems or issues')." 23

The Court likewise had occasion to apply the "balancing-of-interests" test, 24 insofar as the statute's ban on
early nomination of candidates was concerned: "The rational connection between the prohibition of Section
50-A and its object, the indirect and modest scope of its restriction on the rights of speech and assembly, and
the embracing public interest which Congress has found in the moderation of partisan political activity, lead us
to the conclusion that the statute may stand consistently with and does not offend the Constitution." 25 In that
case, Castro would have the balance achieved in favor of State authority at the "expense" of individual
liberties.
In the United States, which had ample impact on Castro's separate opinion, the balancing test finds a close kin,
referred to as the "less restrictive alternative " 26 doctrine, under which the court searches for alternatives
available to the Government outside of statutory limits, or for "less drastic means" 27 open to the State, that
would render the statute unnecessary. In United States v. Robel, 28 legislation was assailed, banning members
of the (American) Communist Party from working in any defense facility. The U.S. Supreme Court, in nullifying
the statute, held that it impaired the right of association, and that in any case, a screening process was
available to the State that would have enabled it to Identify dangerous elements holding defense positions. 29
In that event, the balance would have been struck in favor of individual liberties.

It should be noted that it is in free expression cases that the result is usually close. It is said, however, that the
choice of the courts is usually narrowed where the controversy involves say, economic rights, 30 or as in the
Levy case, military affairs, in which less precision in analysis is required and in which the competence of the
legislature is presumed.

In no way may the ordinances at bar be said to be tainted with the vice of vagueness. It is unmistakable from
their very provisions that the appellant falls within its coverage. As the actual operator of the fishponds, he
comes within the term " manager." He does not deny the fact that he financed the construction of the
fishponds, introduced fish fries into the fishponds, and had employed laborers to maintain them. 31 While it
appears that it is the National Government which owns them, 32 the Government never shared in the profits
they had generated. It is therefore only logical that he shoulders the burden of tax under the said ordinances.

We agree with the trial court that the ordinances are in the character of revenue measures 33 designed to
assist the coffers of the municipality of Pagbilao. And obviously, it cannot be the owner, the Government, on
whom liability should attach, for one thing, upon the ancient principle that the Government is immune from
taxes and for another, since it is not the Government that had been making money from the venture.

Suffice it to say that as the actual operator of the fishponds in question, and as the recipient of profits brought
about by the business, the appellant is clearly liable for the municipal taxes in question. He cannot say that he
did not have a fair notice of such a liability to make such ordinances vague.

Neither are the said ordinances vague as to dates of payment. There is no merit to the claim that "the
imposition of tax has to depend upon an uncertain date yet to be determined (three years after the 'approval
of the fishpond' by the Bureau of Fisheries, and upon an uncertain event (if the fishpond started operating
before 1964), also to be determined by an uncertain individual or individuals." 34 Ordinance No. 15, in making
the tax payable "after the lapse of three (3) years starting from the date said fishpond is approved by the
Bureau of Fisheries," 35 is unequivocal about the date of payment, and its amendment by Ordinance No. 12,
reckoning liability thereunder "beginning and taking effect from the year 1964 if the fishpond started operating
before the year 1964 ," 36 does not give rise to any ambiguity. In either case, the dates of payment have been
definitely established. The fact that the appellant has been allegedly uncertain about the reckoning dates — as
far as his liability for the years 1964, 1965, and 1966 is concerned — presents a mere problem in computation,
but it does not make the ordinances vague. In addition, the same would have been at most a difficult piece of
legislation, which is not unfamiliar in this jurisdiction, but hardly a vague law.

As it stands, then, liability for the tax accrues on January 1, 1964 for fishponds in operation prior thereto
(Ordinance No. 12), and for new fishponds, three years after their approval by the Bureau of Fisheries
(Ordinance No. 15). This is so since the amendatory act (Ordinance No. 12) merely granted amnesty unto old,
delinquent fishpond operators. It did not repeal its mother ordinances (Nos. 4 and 15). With respect to new
operators, Ordinance No. 15 should still prevail.

To the Court, the ordinances in question set forth enough standards that clarify imagined ambiguities. While
such standards are not apparent from the face thereof, they are visible from the intent of the said ordinances.

The next inquiry is whether or not they can be said to be ex post facto measures. The appellant argues that
they are: "Amendment No. 12 passed on September 19, 1966, clearly provides that the payment of the
imposed tax shall "beginning and taking effect from the year 1964, if the fishpond started operating before the
year 1964.' In other words, it penalizes acts or events occurring before its passage, that is to say, 1964 and
even prior thereto." 37

The Court finds no merit in this contention. As the Solicitor General notes, "Municipal Ordinance No. 4 was
passed on May 14, 1955. 38 Hence, it cannot be said that the amendment (under Ordinance No. 12) is being
made to apply retroactively (to 1964) since the reckoning period is 1955 (date of enactment). Essentially,
Ordinances Nos. 12 and 15 are in the nature of curative measures intended to facilitate and enhance the
collection of revenues the originally act, Ordinance No. 4, had prescribed. 39 Moreover, the act (of non-
payment of the tax), had been, since 1955, made punishable, and it cannot be said that Ordinance No. 12
imposes a retroactive penalty. As we have noted, it operates to grant amnesty to operators who had been
delinquent between 1955 and 1964. It does not mete out a penalty, much less, a retrospective one.

The appellant assails, finally, the power of the municipal council of Pagbilao to tax "public forest land." 40 In
Golden Ribbon Lumber Co., Inc. v. City of Butuan 41 we held that local governments' taxing power does not
extend to forest products or concessions under Republic Act No. 2264, the Local Autonomy Act then in force.
(Republic Act No. 2264 likewise prohibited municipalities from imposing percentage taxes on sales.)

First of all, the tax in question is not a tax on property, although the rate thereof is based on the area of
fishponds ("P3.00 per hectare" 42). Secondly, fishponds are not forest lands, although we have held them to
the agricultural lands. 43 By definition, "forest" is "a large tract of land covered with a natural growth of trees
and underbush; a large wood." 44 (Accordingly, even if the challenged taxes were directed on the fishponds,
they would not have been taxes on forest products.)

They are, more accurately, privilege taxes on the business of fishpond maintenance. They are not charged
against sales, which would have offended the doctrine enshrined by Golden Ribbon Lumber, 45 but rather on
occupation, which is allowed under Republic Act No. 2264. 46 They are what have been classified as fixed
annual taxes and this is obvious from the ordinances themselves.

There is, then, no merit in the last objection.

WHEREFORE, the appeal is DISMISSED. Costs against the appellant.

G.R. No. L-26702 October 18, 1979

JUAN AUGUSTO B. PRIMICIAS, plaintiff-appellee,

vs.
THE MUNICIPALITY OF URDANETA, PANGASINAN, ET AL., defendants-appellants.
Ambrosio Padilla Law Offices for appellee.

Primicias, Castillo & Macaraeg for appellants.

DE CASTRO, J.:

The main issue in this appeal is the validity of Ordinance No. 3, Series of 1964, enacted on March 13,1964 by
the Municipal Council of Urdaneta, Pangasinan, which was declared null and void by the Court of First Instance
of Lingayen, Pangasinan, in its decision dated June 29, 1966, the dispositive portion of which reads as follows:

WHEREFORE, this Court renders decision declaring Ordinance No, 3, Series of 1964, to be null and void; making
the writ of preliminary injunction heretofore issued against the defendant, Felix D. Soriano definite and
permanent; and further restraining the defendants, Amadeo R. Perez, Jr., Lorenzo G. Suyat and Estanislao
Andrada, from enforcing the said ordinance all throughout Urdaneta; and ordering the said defendants to
return to the plaintiff his drivers (sic) license CIN 017644, a copy of which is Exhibit D-1, and to pay the costs of
suit. 1

From the aforecited decision, defendants appealed to this Court. The antecedent facts of this case are as
follows: 2

On February 8, 1965, Juan Augusta B. Primacias plaintiff appellee, was driving his car within the jurisdiction of
Urdaneta when a member of Urdaneta's Municipal Police asked him to stop. He was told, upon stopping, that
he had violated Municipal Ordinance No. 3, Series of 1964, "and more particularly, for overtaking a truck." The
policeman then asked for plaintiff's license which he surrendered, and a temporary operator's permit was
issued to him. This incident took place about 200 meters away from a school building, at Barrio Nancamaliran,
Urdaneta.

Thereafter, a criminal complaint was filed in the Municipal Court of Urdaneta against Primicias for violation of
Ordinance No. 3, Series of 1964. Due to the institution of the criminal case, plaintiff Primicias initiated an
action for the annulment of said ordinance with prayer for the issuance of preliminary injunction for the
purpose of restraining defendants Municipality of Urdaneta, Mayor Perez, Police Chief Suyat, Judge Soriano
and Patrolman Andrada from enforcing the ordinance. The writ was issued and Judge Soriano was enjoined
from further proceeding in the criminal case.

After trial, the Court of First Instance rendered the questioned decision holding that the ordinance was null
and void and had been repealed by Republic Act No. 4136, otherwise known as the Land Transportation and
Traffic Code. Now, defendants, appellants herein, allege that the lower court erred in: 3

1. declaring that Municipal Ordinance No. 3 (Series of 1964) of Urdaneta is null and void;

2. requiring the municipal council of Urdaneta in the enactment of said ordinance to give maximum
allowable speed and to make classification of highways;

3. holding that said ordinance is in conflict with section 35 par. b(4) of Republic Act 4136;
4. requiring that said ordinance be approved by the Land Transportation Commissioner;

5. holding that said ordinance is not clear and definite in its terms;

6. issuing ex-parte a writ of injunction to restrain the proceedings in criminal case no. 3140.

The ordinance in question provides: 4

SECTION 1 - That the following speed limits for vehicular traffic along the National Highway and the
Provincial Roads within the territorial limits of Urdaneta shall be as follows:

a. Thru crowded streets approaching intersections at 'blind corners, passing school zones or thickly
populated areas, duly marked with sign posts, the maximum speed limit allowable shall be 20 kph.

SECTION 2 - That any person or persons caught driving any motor vehicle violating the provisions of this
ordinance shall be fined P10.00 for the first offense; P20.00 for the second offense; and P30.00 for the third
and succeeding offenses, the Municipal Judge shall recommend the cancellation of the license of the offender
to the Motor Vehicle's Office (MVO); or failure to pay the fine imposed, he shall suffer a subsidiary
imprisonment in accordance with law.

Appellants contend that the Ordinance is valid, being "patterned after and based on Section 53, 5 par. 4 of Act
No. 3992, as amended (Revised Motor Vehicle Law)." In so arguing, appellants fail to note that Act No. 3992
has been superseded by Republic Act No. 4136, the Land Transportation and 'Traffic Code, which became
effective on June 20, 1964, about three months after the questioned ordinance was approved by Urdaneta's
Municipal Council. The explicit repeal of the aforesaid Act is embodied in Section 63, Republic Act No. 4136, to
wit:

Act Numbered thirty-nine hundred ninety-two (3992) as amended, and all laws, executive orders, ordinance,
resolutions, regulations or paints thereof in conflict with the provisions of this Act are repealed.

By this express repeal, and the general rule that a later law prevails over an earlier law, 6 appellants are in error
in contending that "a later enactment of the law relating to the same subject matter as that of an earlier
statute is not sufficient to cause an implied repeal of the original law." Pursuant to Section 63, Republic Act No.
4136, the ordinance at bar is thus placed within the ambit of Republic Act No. 4136, and not Act No. 3992. The
validity of Ordinance No. 3, Series of 1964, must therefore be determined vis-a-vis Republic Act No. 4136, the
"mother statute" so to speak, which was in force at the time the criminal case was brought against Primicias
for the violation of the said ordinance.

An essential requisite for a valid ordinance is, among others, that is "must not contravene . . . the statute," 7
for it is a "fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of
the state." 8 Following this general rule, whenever there is a conflict between an ordinance and a statute, the
ordinance "must give way. 9

Since the Ordinance is aimed at regulating traffic, Chapter IV Traffic Rules), Article I (Speed Limits and Keeping
to the Right), consisting of sections 35, to 38 of Republic Act No. 4136, particularly Sections 35, 36, 38 contain
the provisions material to its validity. Section 35 (b), Republic Act No. 4136, which took the place of Section 53,
par. (4), Act No. 3992, provides restrictions as to speed thus:

MAXIMUM ALLOWABLE SPEEDS

Passenger cars and

Motor trucks

motorcycle

and buses

1. On open country roads, with

"blind corners" not closely bordered

by habitation.

80 km.

50 km.

2. On through streets or

per hour

per hour

boulevards, clear of traffic, with "no

blind corners" when so designated.

40 km.

30 km.

3. On city and municipal

per hour

per hour

streets, with light traffic, when not

designated "through streets."

30 km.

30 km.

4. Through crowded streets ap

per hour

per hour

proaching intersection at "blind cor

ners," passing school zones, passing

other vehicles which are stationary, or

for similar circumstances.

20 km.

20 km.

per hour

per hour

A look at the aforecited section and Section 1, par. (a) of the Ordinance shows that the latter is more or less a
restatement only of number (4), par. (b), Section 35. As observed by the trial court, the Ordinance "refers to
only one of the four classifications mentioned in paragraph (b), Section 35." 10 limiting the rates of speed for

vehicular traffic along the national highway and The provincial roads within the territorial limits of Urdaneta to
20 kilometers per hour without regard to whether the road is an open country roads (six), or through streets or
boulevards, or city or municipal streets with light traffic. 11

As also found correctly by the lower court, the Municipal Council of Urdaneta did not make any classification of
its thoroughfares, contrary to the explicit requirement laid down by Section 38, Republic Act No. 4136, which
provides:

Classification of highways. - Public highways shall be properly classified for traffic purposes by the provincial
board or city council having jurisdiction over them, and said provincial board, municipal board or city council
shall provide appropriate signs therefor, subject to the approval of the Commissioner. It shall be the duty of
every provincial, city and municipal secretary to certify to the Commissioner the names, locations, and limits of
all "through streets" designated as such by the provincial board, municipal board or council.

Under this section, a local legislative body intending to control traffic in public highways 12 is supposed to
classify, first, and then mark them with proper signs, all to be approved by the Land Transportation
Commissioner. To hold that the provisions of Section 38 are mandatory is sanctioned by a ruling 13 that

statutes which confer upon a public body or officer . . . power to perform acts which concern the public
interests or rights of individuals, are generally, regarded as mandatory although the language is permissive only
since the are construed as imposing duties rather than conferring privileges.

The classifications which must be based on Section 35 are necessary in view of Section 36 which states that
"no provincial, city or municipal authority shall enact or enforce any ordinance or resolution specifying
maximum allowable speeds other than those provided in this Act." In this case, however, there is no showing
that the marking of the streets and areas falling under Section 1, par. (a), Ordinance No. 3, Series of 1964, was
done with the approval of the Land Transportation Commissioner. Thus, on this very ground alone, the
Ordinance becomes invalid. Since it lacks the requirement imposed by Section 38, the provincial, city, or
municipal board or council is enjoined under Section 62 of the Land Transportation and Traffic Code from
"enacting or enforcing any ordinance or resolution in conflict with the provisions of this Act."

Regarding the contention that the lower court erred in holding that said "Ordinance is not clear and definite in
its terms." We agree with the Court a quo that when the Municipal Council of Urdaneta used the phrase
"vehicular traffic" (Section 1, Ordinance) it "did not distinguish between passenger cars and motor vehicles and
motor trucks and buses." 14 This conclusion is bolstered by the fact that nowhere in the Ordinance is
"vehicular traffic" defined. Considering that this is a regulatory ordinance, its clearness, definiteness and
certainty are all the more important so that "an average man should be able with due care, after reading it,, to
understand and ascertain whether he will incur a penalty for particular acts or courses of conduct." 15 In
comparison, Section 35(b), Republic Act No. 4136 on which Section 1 of the Ordinance must be based, stated
that the rates of speed enumerated therein refer to motor vehicle, 16 specifying the speed for each kind of
vehicle. At the same time, to avoid vagueness, Art. 11, Section 3 defines what a motor vehicle is and passenger
automobiles are.

On the issue of whether a writ of injunction can restrain the proceedings in Criminal Case No. 3140, the
general rule is that "ordinarily, criminal prosecution may not be blocked by court prohibition or injunction." 17
Exceptions however are allowed in the following instances:

1. for the orderly administration of justice;

2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner;

3. to avoid multiplicity of actions;

4. to afford adequate protection to constitutional rights;

5. in proper cases, because the statute relied upon is unconstitutional or was held invalid. 18

The local statute or ordinance at bar being invalid, the exception just cited obtains in this case. Hence, the
lower court did not err in issuing the writ of injunction against defendants. Moreover, considering that "our
law on municipal corporations is in principle patterned after that of the United States, " 19 it would not be
amiss for Us to adopt in this instance the ruling that to enjoin the enforcement of a void ordinance, "injunction
has frequently been sustained in order to prevent a multiplicity of prosecutions under it." 20

In view of the foregoing, the appealed decision is hereby affirmed.

G.R. No. L-24670 December 14, 1979

ORTIGAS & CO., LIMITED PARTNERSHIP, plaintiff-appellant,

vs.
FEATI BANK AND TRUST CO., defendant-appellee.

Ramirez & Ortigas for appellant.

Tañada, Teehankee & Carreon for appellee.

SANTOS, J.:

An appeal interposed on June 23, 1965 by plaintiff-appellant, Ortigas & Co., Limited Partnership, from the
decision of the Court of First Instance of Rizal, Branch VI, at Pasig, Hon. Andres Reyes presiding, which
dismissed its complaint in Civil Case No. 7706, entitled, "Ortigas & Company, Limited Partnership, plaintiff, v.
Feati Bank and Trust Company, defendant," for lack of merit.

The following facts — a reproduction of the lower court's findings, which, in turn, are based on a stipulation of
facts entered into by the parties are not disputed. Plaintiff (formerly known as "Ortigas, Madrigal y Cia") is a
limited partnership and defendant Feati Bank and Trust Co., is a corporation duly organized and existing in
accordance with the laws of the Philippines. Plaintiff is engaged in real estate business, developing and selling
lots to the public, particularly the Highway Hills Subdivision along Epifanio de los Santos Avenue,
Mandaluyong, Rizal. 1

On March 4, 1952, plaintiff, as vendor, and Augusto Padilla y Angeles and Natividad Angeles, as vendees,
entered into separate agreements of sale on installments over two parcels of land, known as Lots Nos. 5 and 6,
Block 31, of the Highway Hills Subdivision, situated at Mandaluyong, Rizal. On July 19, 1962, the said vendees
transferred their rights and interests over the aforesaid lots in favor of one Emma Chavez. Upon completion of
payment of the purchase price, the plaintiff executed the corresponding deeds of sale in favor of Emma
Chavez. Both the agreements (of sale on installment) and the deeds of sale contained the stipulations or
restrictions that:

1. The parcel of land subject of this deed of sale shall be used the Buyer exclusively for residential
purposes, and she shall not be entitled to take or remove soil, stones or gravel from it or any other lots
belonging to the Seller.

2. All buildings and other improvements (except the fence) which may be constructed at any time in said
lot must be, (a) of strong materials and properly painted, (b) provided with modern sanitary installations
connected either to the public sewer or to an approved septic tank, and (c) shall not be at a distance of less
than two (2) meters from its boundary lines. 2

The above restrictions were later annotated in TCT Nos. 101509 and 101511 of the Register of Deeds of Rizal,
covering the said lots and issued in the name of Emma Chavez.3

Eventually, defendant-appellee acquired Lots Nos. 5 and 6, with TCT Nos. 101613 and 106092 issued in its
name, respectively and the building restrictions were also annotated therein. 4 Defendant-appellee bought Lot
No. 5 directly from Emma Chavez, "free from all liens and encumbrances as stated in Annex 'D', 5 while Lot No.
6 was acquired from Republic Flour Mills through a "Deed of Exchange," Annex "E". 6 TCT No. 101719 in the
name of Republic Flour Mills likewise contained the same restrictions, although defendant-appellee claims that
Republic Flour Mills purchased the said Lot No. 6 "in good faith. free from all liens and encumbrances," as
stated in the Deed of Sale, Annex "F" 7 between it and Emma Chavez.

Plaintiff-appellant claims that the restrictions annotated on TCT Nos. 101509, 101511, 101719, 101613, and
106092 were imposed as part of its general building scheme designed for the beautification and development
of the Highway Hills Subdivision which forms part of the big landed estate of plaintiff-appellant where
commercial and industrial sites are also designated or established. 8

Defendant-appellee, upon the other hand, maintains that the area along the western part of Epifanio de los
Santos Avenue (EDSA) from Shaw Boulevard to Pasig River, has been declared a commercial and industrial
zone, per Resolution No. 27, dated February 4, 1960 of the Municipal Council of Mandaluyong, Rizal. 9 It
alleges that plaintiff-appellant 'completely sold and transferred to third persons all lots in said subdivision
facing Epifanio de los Santos Avenue" 10 and the subject lots thereunder were acquired by it "only on July 23,
1962 or more than two (2) years after the area ... had been declared a commercial and industrial zone ... 11

On or about May 5, 1963, defendant-appellee began laying the foundation and commenced the construction
of a building on Lots Nos. 5 and 6, to be devoted to banking purposes, but which defendant-appellee claims
could also be devoted to, and used exclusively for, residential purposes. The following day, plaintiff-appellant
demanded in writing that defendant-appellee stop the construction of the commerical building on the said
lots. The latter refused to comply with the demand, contending that the building was being constructed in
accordance with the zoning regulations, defendant-appellee having filed building and planning permit
applications with the Municipality of Mandaluyong, and it had accordingly obtained building and planning
permits to proceed with the construction.12

On the basis of the foregoing facts, Civil Case No. 7706, supra, was submitted in the lower court for decision.
The complaint sought, among other things, the issuance of "a writ of preliminary injunction ... restraining and
enjoining defendant, its agents, assigns, and those acting on its or their behalf from continuing or completing
the construction of a commercial bank building in the premises ... involved, with the view to commanding the
defendant to observe and comply with the building restrictions annotated in the defendant's transfer
certificate of title."

In deciding the said case, the trial court considered, as the fundamental issue, whether or not the resolution of
the Municipal Council of Mandaluyong declaring Lots Nos. 5 and 6, among others, as part of the commercial
and industrial zone of the municipality, prevailed over the building restrictions imposed by plaintiff-appellant
on the lots in question. 13 The records do not show that a writ of preliminary injunction was issued.

The trial court upheld the defendant-appellee and dismissed the complaint, holding that the subject
restrictions were subordinate to Municipal Resolution No. 27, supra. It predicated its conclusion on the
exercise of police power of the said municipality, and stressed that private interest should "bow down to
general interest and welfare. " In short, it upheld the classification by the Municipal Council of the area along
Epifanio de los Santos Avenue as a commercial and industrial zone, and held that the same rendered
"ineffective and unenforceable" the restrictions in question as against defendant-appellee.14 The trial court
decision further emphasized that it "assumes said resolution to be valid, considering that there is no issue
raised by either of the parties as to whether the same is null and void. 15

On March 2, 1965, plaintiff-appellant filed a motion for reconsideration of the above decision, 16 which motion
was opposed by defendant-appellee on March 17, 1965.17 It averred, among others, in the motion for
reconsideration that defendant- appellee "was duty bound to comply with the conditions of the contract of
sale in its favor, which conditions were duly annotated in the Transfer Certificates of Title issued in her (Emma
Chavez) favor." It also invited the trial court's attention to its claim that the Municipal Council had (no) power
to nullify the contractual obligations assumed by the defendant corporation." 18
The trial court denied the motion for reconsideration in its order of March 26, 1965. 19

On April 2, 1965 plaintiff-appellant filed its notice of appeal from the decision dismissing the complaint and
from the order of March 26, 1965 denying the motion for reconsideration, its record on appeal, and a cash
appeal bond." 20 On April 14, the appeal was given due course 21 and the records of the case were elevated
directly to this Court, since only questions of law are raised. 22

Plaintiff-appellant alleges in its brief that the trial court erred —

I. When it sustained the view that Resolution No. 27, series of 1960 of the Municipal Council of
Mandaluyong, Rizal declaring Lots Nos. 5 and 6, among others, as part of the commercial and industrial zone,
is valid because it did so in the exercise of its police power; and

II. When it failed to consider whether or not the Municipal Council had the power to nullify the
contractual obligations assumed by defendant-appellee and when it did not make a finding that the building
was erected along the property line, when it should have been erected two meters away from said property
line. 23

The defendant-appellee submitted its counter-assignment of errors. In this connection, We already had
occasion to hold in Relativo v. Castro 24 that "(I)t is not incumbent on the appellee, who occupies a purely
defensive position, and is seeking no affirmative relief, to make assignments of error, "

The only issues to be resolved, therefore, are: (1) whether Resolution No. 27 s-1960 is a valid exercise of police
power; and (2) whether the said Resolution can nullify or supersede the contractual obligations assumed by
defendant-appellee.

1. The contention that the trial court erred in sustaining the validity of Resolution No. 27 as an exercise of
police power is without merit. In the first place, the validity of the said resolution was never questioned before
it. The rule is that the question of law or of fact which may be included in the appellant's assignment of errors
must be those which have been raised in the court below, and are within the issues framed by the parties. 25
The object of requiring the parties to present all questions and issues to the lower court before they can be
presented to the appellate court is to enable the lower court to pass thereon, so that the appellate court upon
appeal may determine whether or not such ruling was erroneous. The requirement is in furtherance of justice
in that the other party may not be taken by surprise. 26 The rule against the practice of blowing "hot and cold"
by assuming one position in the trial court and another on appeal will, in the words of Elliot, prevent
deception. 27 For it is well-settled that issues or defenses not raised 28 or properly litigated 29 or pleaded 30
in the Court below cannot be raised or entertained on appeal.

In this particular case, the validity of the resolution was admitted at least impliedly, in the stipulation of facts
below. when plaintiff-appellant did not dispute the same. The only controversy then as stated by the trial court
was whether or not the resolution of the Municipal Council of Mandaluyong ... which declared lots Nos. 4 and
5 among others, as a part of the commercial and industrial zone of the municipality, prevails over the
restrictions constituting as encumbrances on the lots in question. 31 Having admitted the validity of the
subject resolution below, even if impliedly, plaintiff-appellant cannot now change its position on appeal.
But, assuming arguendo that it is not yet too late in the day for plaintiff-appellant to raise the issue of the
invalidity of the municipal resolution in question, We are of the opinion that its posture is unsustainable.
Section 3 of R.A. No. 2264, otherwise known as the Local Autonomy Act," 32 empowers a Municipal Council
"to adopt zoning and subdivision ordinances or regulations"; 33 for the municipality. Clearly, the law does not
restrict the exercise of the power through an ordinance. Therefore, granting that Resolution No. 27 is not an
ordinance, it certainly is a regulatory measure within the intendment or ambit of the word "regulation" under
the provision. As a matter of fact the same section declares that the power exists "(A)ny provision of law to the
contrary notwithstanding ... "

An examination of Section 12 of the same law 34 which prescribes the rules for its interpretation likewise
reveals that the implied power of a municipality should be "liberally construed in its favor" and that "(A)ny fair
and reasonable doubt as to the existence of the power should be interpreted in favor of the local government
and it shall be presumed to exist." The same section further mandates that the general welfare clause be
liberally interpreted in case of doubt, so as to give more power to local governments in promoting the
economic conditions, social welfare and material progress of the people in the community. The only exceptions
under Section 12 are existing vested rights arising out of a contract between "a province, city or municipality
on one hand and a third party on the other," in which case the original terms and provisions of the contract
should govern. The exceptions, clearly, do not apply in the case at bar.

2. With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the
defendant-appellee – referring to the restrictions incorporated in the deeds of sale and later in the
corresponding Transfer Certificates of Title issued to defendant-appellee – it should be stressed, that while
non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be
reconciled with the legitimate exercise of police power, i.e., "the power to prescribe regulations to promote
the health, morals, peace, education, good order or safety and general welfare of the people. 35 Invariably
described as "the most essential, insistent, and illimitable of powers" 36 and "in a sense, the greatest and most
powerful attribute of government, 37 the exercise of the power may be judicially inquired into and corrected
only if it is capricious, 'whimsical, unjust or unreasonable, there having been a denial of due process or a
violation of any other applicable constitutional guarantee. 38 As this Court held through Justice Jose P.
Bengzon in Philippine Long Distance Company vs. City of Davao, et al. 39 police power "is elastic and must be
responsive to various social conditions; it is not, confined within narrow circumscriptions of precedents resting
on past conditions; it must follow the legal progress of a democratic way of life." We were even more emphatic
in Vda. de Genuino vs. The Court of Agrarian Relations, et al., 40 when We declared: "We do not see why
public welfare when clashing with the individual right to property should not be made to prevail through the
state's exercise of its police power.

Resolution No. 27, s-1960 declaring the western part of highway 54, now E. de los Santos Avenue (EDSA, for
short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone, was obviously passed by
the Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the
health, safety, peace, good order and general welfare of the people in the locality, Judicial notice may be taken
of the conditions prevailing in the area, especially where lots Nos. 5 and 6 are located. The lots themselves not
only front the highway; industrial and commercial complexes have flourished about the place. EDSA, a main
traffic artery which runs through several cities and municipalities in the Metro Manila area, supports an
endless stream of traffic and the resulting activity, noise and pollution are hardly conducive to the health,
safety or welfare of the residents in its route. Having been expressly granted the power to adopt zoning and
subdivision ordinances or regulations, the municipality of Mandaluyong, through its Municipal 'council, was
reasonably, if not perfectly, justified under the circumstances, in passing the subject resolution.

The scope of police power keeps expanding as civilization advances, stressed this Court, speaking thru Justice
Laurel in the leading case of Calalang v. Williams et al., 41 Thus-

As was said in the case of Dobbins v. Los Angeles (195 US 223, 238 49 L. ed. 169), 'the right to exercise the
police power is a continuing one, and a business lawful today may in the future, because of changed situation,
the growth of population or other causes, become a menace to the public health and welfare, and be required
to yield to the public good.' And in People v. Pomar (46 Phil. 440), it was observed that 'advancing civilization is
bringing within the scope of police power of the state today things which were not thought of as being with in
such power yesterday. The development of civilization), the rapidly increasing population, the growth of public
opinion, with an increasing desire on the part of the masses and of the government to look after and care for
the interests of the individuals of the state, have brought within the police power many questions for
regulation which formerly were not so considered. 42 (Emphasis, supplied.)

Thus, the state, in order to promote the general welfare, may interfere with personal liberty, with property,
and with business and occupations. Persons may be subjected to all kinds of restraints and burdens, in order to
secure the general comfort health and prosperity of the state 43 and to this fundamental aim of our
Government, the rights of the individual are subordinated. 44

The need for reconciling the non-impairment clause of the Constitution and the valid exercise of police power
may also be gleaned from Helvering v. Davis 45 wherein Mr. Justice Cardozo, speaking for the Court, resolved
the conflict "between one welfare and another, between particular and general, thus —

Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be
interwoven in our day with the well-being of the nation What is critical or urgent changes with the times. 46

The motives behind the passage of the questioned resolution being reasonable, and it being a " legitimate
response to a felt public need," 47 not whimsical or oppressive, the non-impairment of contracts clause of the
Constitution will not bar the municipality's proper exercise of the power. Now Chief Justice Fernando puts it
aptly when he declared: "Police power legislation then is not likely to succumb to the challenge that thereby
contractual rights are rendered nugatory." 48

Furthermore, We restated in Philippine American Life Ins. Co. v. Auditor General49 that laws and reservation of
essential attributes of sovereign power are read into contracts agreed upon by the parties. Thus —

Not only are existing laws read into contracts in order to fix obligations as between the parties, but the
reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal
order. The policy of protecting contracts against impairments presupposes the maintenance of a government
by virtue of which contractual relations are worthwhile – a government which retains adequate authority to
secure the peace and good order of society.

Again, We held in Liberation Steamship Co., Inc. v. Court of Industrial Relations, 50 through Justice J.B.L. Reyes,
that ... the law forms part of, and is read into, every contract, unless clearly excluded therefrom in those cases
where such exclusion is allowed." The decision in Maritime Company of the Philippines v. Reparations
Commission, 51 written for the Court by Justice Fernando, now Chief Justice, restates the rule.

One last observation. Appellant has placed unqualified reliance on American jurisprudence and authorities 52
to bolster its theory that the municipal resolution in question cannot nullify or supersede the agreement of the
parties embodied in the sales contract, as that, it claims, would impair the obligation of contracts in violation
of the Constitution. Such reliance is misplaced.

In the first place, the views set forth in American decisions and authorities are not per se controlling in the
Philippines, the laws of which must necessarily be construed in accordance with the intention of its own
lawmakers and such intent may be deduced from the language of each law and the context of other local
legislation related thereto. 53 and Burgess, et al v. Magarian, et al., 55 two Of the cases cited by plaintiff-
appellant, lend support to the conclusion reached by the trial court, i.e. that the municipal resolution
supersedes/supervenes over the contractual undertaking between the parties. Dolan v. Brown, states that
"Equity will not, as a rule, enforce a restriction upon the use of property by injunction where the property has
so changed in character and environment as to make it unfit or unprofitable for use should the restriction be
enforced, but will, in such a case, leave the complainant to whatever remedy he may have at law. 56 (Emphasis
supplied.) Hence, the remedy of injunction in Dolan vs. Brown was denied on the specific holding that "A
grantor may lawfully insert in his deed conditions or restrictions which are not against public policy and do not
materially impair the beneficial enjoyment of the estate. 57 Applying the principle just stated to the present
controversy, We can say that since it is now unprofitable, nay a hazard to the health and comfort, to use Lots
Nos. 5 and 6 for strictly residential purposes, defendants- appellees should be permitted, on the strength of
the resolution promulgated under the police power of the municipality, to use the same for commercial
purposes. In Burgess v. Magarian et al. it was, held that "restrictive covenants running with the land are
binding on all subsequent purchasers ... " However, Section 23 of the zoning ordinance involved therein
contained a proviso expressly declaring that the ordinance was not intended "to interfere with or abrogate or
annul any easements, covenants or other agreement between parties." 58 In the case at bar, no such proviso is
found in the subject resolution.

It is, therefore, clear that even if the subject building restrictions were assumed by the defendant-appellee as
vendee of Lots Nos. 5 and 6, in the corresponding deeds of sale, and later, in Transfer Certificates of Title Nos.
101613 and 106092, the contractual obligations so assumed cannot prevail over Resolution No. 27, of the
Municipality of Mandaluyong, which has validly exercised its police power through the said resolution.
Accordingly, the building restrictions, which declare Lots Nos. 5 and 6 as residential, cannot be enforced.

IN VIEW OF THE FOREGOING, the decision appealed from, dismissing the complaint, is hereby AFFIRMED.
"without pronouncement as to costs.

SO ORDERED.
G.R. No. L-19190 November 29, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
VENANCIO CONCEPCION, defendant-appellant.

Recaredo Ma. Calvo for appellant.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

By telegrams and a letter of confirmation to the manager of the Aparri branch of the Philippine National Bank,
Venancio Concepcion, President of the Philippine National Bank, between April 10, 1919, and May 7, 1919,
authorized an extension of credit in favor of "Puno y Concepcion, S. en C." in the amount of P300,000. This
special authorization was essential in view of the memorandum order of President Concepcion dated May 17,
1918, limiting the discretional power of the local manager at Aparri, Cagayan, to grant loans and discount
negotiable documents to P5,000, which, in certain cases, could be increased to P10,000. Pursuant to this
authorization, credit aggregating P300,000, was granted the firm of "Puno y Concepcion, S. en C.," the only
security required consisting of six demand notes. The notes, together with the interest, were taken up and paid
by July 17, 1919.

"Puno y Concepcion, S. en C." was a copartnership capitalized at P100,000. Anacleto Concepcion contributed
P5,000; Clara Vda. de Concepcion, P5,000; Miguel S. Concepcion, P20,000; Clemente Puno, P20,000; and
Rosario San Agustin, "casada con Gral. Venancio Concepcion," P50,000. Member Miguel S. Concepcion was the
administrator of the company.

On the facts recounted, Venancio Concepcion, as President of the Philippine National Bank and as member of
the board of directors of this bank, was charged in the Court of First Instance of Cagayan with a violation of
section 35 of Act No. 2747. He was found guilty by the Honorable Enrique V. Filamor, Judge of First Instance,
and was sentenced to imprisonment for one year and six months, to pay a fine of P3,000, with subsidiary
imprisonment in case of insolvency, and the costs.

Section 35 of Act No. 2747, effective on February 20, 1918, just mentioned, to which reference must hereafter
repeatedly be made, reads as follows: "The National Bank shall not, directly or indirectly, grant loans to any of
the members of the board of directors of the bank nor to agents of the branch banks." Section 49 of the same
Act provides: "Any person who shall violate any of the provisions of this Act shall be punished by a fine not to
exceed ten thousand pesos, or by imprisonment not to exceed five years, or by both such fine and
imprisonment." These two sections were in effect in 1919 when the alleged unlawful acts took place, but were
repealed by Act No. 2938, approved on January 30, 1921.

Counsel for the defense assign ten errors as having been committed by the trial court. These errors they have
argued adroitly and exhaustively in their printed brief, and again in oral argument. Attorney-General Villa-Real,
in an exceptionally accurate and comprehensive brief, answers the proposition of appellant one by one.

The question presented are reduced to their simplest elements in the opinion which follows:

I. Was the granting of a credit of P300,000 to the copartnership "Puno y Concepcion, S. en C." by Venancio
Concepcion, President of the Philippine National Bank, a "loan" within the meaning of section 35 of Act No.
2747?
Counsel argue that the documents of record do not prove that authority to make a loan was given, but only
show the concession of a credit. In this statement of fact, counsel is correct, for the exhibits in question speak
of a "credito" (credit) and not of a " prestamo" (loan).

The "credit" of an individual means his ability to borrow money by virtue of the confidence or trust reposed by
a lender that he will pay what he may promise. (Donnell vs. Jones [1848], 13 Ala., 490; Bouvier's Law
Dictionary.) A "loan" means the delivery by one party and the receipt by the other party of a given sum of
money, upon an agreement, express or implied, to repay the sum loaned, with or without interest. (Payne vs.
Gardiner [1864], 29 N. Y., 146, 167.) The concession of a "credit" necessarily involves the granting of "loans" up
to the limit of the amount fixed in the "credit,"

II. Was the granting of a credit of P300,000 to the copartnership "Puno y Concepcion, S. en C.," by Venancio
Concepcion, President of the Philippine National Bank, a "loan" or a "discount"?

Counsel argue that while section 35 of Act No. 2747 prohibits the granting of a "loan," it does not prohibit
what is commonly known as a "discount."

In a letter dated August 7, 1916, H. Parker Willis, then President of the National Bank, inquired of the Insular
Auditor whether section 37 of Act No. 2612 was intended to apply to discounts as well as to loans. The ruling
of the Acting Insular Auditor, dated August 11, 1916, was to the effect that said section referred to loans alone,
and placed no restriction upon discount transactions. It becomes material, therefore, to discover the
distinction between a "loan" and a "discount," and to ascertain if the instant transaction comes under the first
or the latter denomination.

Discounts are favored by bankers because of their liquid nature, growing, as they do, out of an actual, live,
transaction. But in its last analysis, to discount a paper is only a mode of loaning money, with, however, these
distinctions: (1) In a discount, interest is deducted in advance, while in a loan, interest is taken at the expiration
of a credit; (2) a discount is always on double-name paper; a loan is generally on single-name paper.

Conceding, without deciding, that, as ruled by the Insular Auditor, the law covers loans and not discounts, yet
the conclusion is inevitable that the demand notes signed by the firm "Puno y Concepcion, S. en C." were not
discount paper but were mere evidences of indebtedness, because (1) interest was not deducted from the face
of the notes, but was paid when the notes fell due; and (2) they were single-name and not double-name paper.

The facts of the instant case having relation to this phase of the argument are not essentially different from the
facts in the Binalbagan Estate case. Just as there it was declared that the operations constituted a loan and not
a discount, so should we here lay down the same ruling.

III. Was the granting of a credit of P300,000 to the copartnership, "Puno y Concepcion, S. en C." by Venancio
Concepcion, President of the Philippine National Bank, an "indirect loan" within the meaning of section 35 of
Act No. 2747?

Counsel argue that a loan to the partnership "Puno y Concepcion, S. en C." was not an "indirect loan." In this
connection, it should be recalled that the wife of the defendant held one-half of the capital of this partnership.
In the interpretation and construction of statutes, the primary rule is to ascertain and give effect to the
intention of the Legislature. In this instance, the purpose of the Legislature is plainly to erect a wall of safety
against temptation for a director of the bank. The prohibition against indirect loans is a recognition of the
familiar maxim that no man may serve two masters — that where personal interest clashes with fidelity to
duty the latter almost always suffers. If, therefore, it is shown that the husband is financially interested in the
success or failure of his wife's business venture, a loan to partnership of which the wife of a director is a
member, falls within the prohibition.

Various provisions of the Civil serve to establish the familiar relationship called a conjugal partnership. (Articles
1315, 1393, 1401, 1407, 1408, and 1412 can be specially noted.) A loan, therefore, to a partnership of which
the wife of a director of a bank is a member, is an indirect loan to such director.

That it was the intention of the Legislature to prohibit exactly such an occurrence is shown by the
acknowledged fact that in this instance the defendant was tempted to mingle his personal and family affairs
with his official duties, and to permit the loan P300,000 to a partnership of no established reputation and
without asking for collateral security.

In the case of Lester and Wife vs. Howard Bank ([1870], 33 Md., 558; 3 Am. Rep., 211), the Supreme Court of
Maryland said:

What then was the purpose of the law when it declared that no director or officer should borrow of the bank,
and "if any director," etc., "shall be convicted," etc., "of directly or indirectly violating this section he shall be
punished by fine and imprisonment?" We say to protect the stockholders, depositors and creditors of the
bank, against the temptation to which the directors and officers might be exposed, and the power which as
such they must necessarily possess in the control and management of the bank, and the legislature unwilling
to rely upon the implied understanding that in assuming this relation they would not acquire any interest
hostile or adverse to the most exact and faithful discharge of duty, declared in express terms that they should
not borrow, etc., of the bank.

In the case of People vs. Knapp ([1912], 206 N. Y., 373), relied upon in the Binalbagan Estate decision, it was
said:

We are of opinion the statute forbade the loan to his copartnership firm as well as to himself directly. The loan
was made indirectly to him through his firm.

IV. Could Venancio Concepcion, President of the Philippine National Bank, be convicted of a violation of section
35 of Act No. 2747 in relation with section 49 of the same Act, when these portions of Act No. 2747 were
repealed by Act No. 2938, prior to the finding of the information and the rendition of the judgment?

As noted along toward the beginning of this opinion, section 49 of Act No. 2747, in relation to section 35 of the
same Act, provides a punishment for any person who shall violate any of the provisions of the Act. It is
contended, however, by the appellant, that the repeal of these sections of Act No. 2747 by Act No. 2938 has
served to take away the basis for criminal prosecution.

This same question has been previously submitted and has received an answer adverse to such contention in
the cases of United Stated vs. Cuna ([1908], 12 Phil., 241); People vs. Concepcion ([1922], 43 Phil., 653); and
Ong Chang Wing and Kwong Fok vs. United States ([1910], 218 U. S., 272; 40 Phil., 1046). In other words, it has
been the holding, and it must again be the holding, that where an Act of the Legislature which penalizes an
offense, such repeals a former Act which penalized the same offense, such repeal does not have the effect of
thereafter depriving the courts of jurisdiction to try, convict, and sentenced offenders charged with violations
of the old law.

V. Was the granting of a credit of P300,000 to the copartnership "Puno y Concepcion, S. en C." by Venancio
Concepcion, President of the Philippine National Bank, in violation of section 35 of Act No. 2747, penalized by
this law?

Counsel argue that since the prohibition contained in section 35 of Act No. 2747 is on the bank, and since
section 49 of said Act provides a punishment not on the bank when it violates any provisions of the law, but on
a person violating any provisions of the same, and imposing imprisonment as a part of the penalty, the
prohibition contained in said section 35 is without penal sanction.lawph!l.net

The answer is that when the corporation itself is forbidden to do an act, the prohibition extends to the board
of directors, and to each director separately and individually. (People vs. Concepcion, supra.)

VI. Does the alleged good faith of Venancio Concepcion, President of the Philippine National Bank, in extending
the credit of P300,000 to the copartnership "Puno y Concepcion, S. en C." constitute a legal defense?

Counsel argue that if defendant committed the acts of which he was convicted, it was because he was misled
by rulings coming from the Insular Auditor. It is furthermore stated that since the loans made to the
copartnership "Puno y Concepcion, S. en C." have been paid, no loss has been suffered by the Philippine
National Bank.

Neither argument, even if conceded to be true, is conclusive. Under the statute which the defendant has
violated, criminal intent is not necessarily material. The doing of the inhibited act, inhibited on account of
public policy and public interest, constitutes the crime. And, in this instance, as previously demonstrated, the
acts of the President of the Philippine National Bank do not fall within the purview of the rulings of the Insular
Auditor, even conceding that such rulings have controlling effect.

Morse, in his work, Banks and Banking, section 125, says:

It is fraud for directors to secure by means of their trust, and advantage not common to the other
stockholders. The law will not allow private profit from a trust, and will not listen to any proof of honest intent.

JUDGMENT

On a review of the evidence of record, with reference to the decision of the trial court, and the errors assigned
by the appellant, and with reference to previous decisions of this court on the same subject, we are irresistibly
led to the conclusion that no reversible error was committed in the trial of this case, and that the defendant
has been proved guilty beyond a reasonable doubt of the crime charged in the information. The penalty
imposed by the trial judge falls within the limits of the punitive provisions of the law.

Judgment is affirmed, with the costs of this instance against the appellant. So ordered.
G.R. No. 102858 July 28, 1997

THE DIRECTOR OF LANDS, petitioner,

vs.
COURT OF APPEALS and TEODORO ABISTADO, substituted by MARGARITA, MARISSA, MARIBEL, ARNOLD
and MARY ANN, all surnamed ABISTO, respondents.

PANGANIBAN, J.:

Is newspaper publication of the notice of initial hearing in an original land registration case mandatory or
directory?

Statement of the Case

The Court of Appeals ruled that it was merely procedural and that the failure to cause such publication did not
deprive the trial court of its authority to grant the application. But the Solicitor General disagreed and thus
filed this petition to set aside the Decision1 promulgated on July 3, 1991 and the subsequent Resolution2
promulgated on November 19, 1991 by Respondent Court of Appeals3 in CA-G.R. CV No. 23719. The
dispositive portion of the challenged Decision reads:4

WHEREFORE, premises considered, the judgment of dismissal appealed from is hereby set aside, and a new
one entered confirming the registration and title of applicant, Teodoro Abistado, Filipino, a resident of
Barangay 7, Poblacion Mamburao, Occidental Mindoro, now deceased and substituted by Margarita, Marissa,
Maribel, Arnold and Mary Ann, all surnamed Abistado, represented by their aunt, Miss Josefa Abistado,
Filipinos, residents of Poblacion Mamburao, Occidental Mindoro, to the parcel of land covered under MSI (IV-
A-8) 315-D located in Poblacion Mamburao, Occidental Mindoro.

The oppositions filed by the Republic of the Philippines and private oppositor are hereby dismissed for want of
evidence.

Upon the finality of this decision and payment of the corresponding taxes due on this land, let an order for the
issuance of a decree be issued.

The Facts

On December 8, 1986, Private Respondent Teodoro Abistado filed a petition for original registration of his title
over 648 square meters of land under Presidential Decree (PD) No. 1529.5 The application was docketed as
Land Registration Case (LRC) No. 86 and assigned to Branch 44 of the Regional Trial Court of Mamburao,
Occidental Mindoro.6 However, during the pendency of his petition, applicant died. Hence, his heirs —
Margarita, Marissa, Maribel, Arnold and Mary Ann, all surnamed Abistado — represented by their aunt Josefa
Abistado, who was appointed their guardian ad litem, were substituted as applicants.
The land registration court in its decision dated June 13, 1989 dismissed the petition "for want of jurisdiction."
However, it found that the applicants through their predecessors-in-interest had been in open, continuous,
exclusive and peaceful possession of the subject land since 1938.

In dismissing the petition, the trial court reasoned:7

. . . However, the Court noted that applicants failed to comply with the provisions of Section 23 (1) of PD 1529,
requiring the Applicants to publish the notice of Initial Hearing (Exh. "E") in a newspaper of general circulation
in the Philippines. Exhibit "E" was only published in the Official Gazette (Exhibits "F" and "G"). Consequently,
the Court is of the well considered view that it has not legally acquired jurisdiction over the instant application
for want of compliance with the mandatory provision requiring publication of the notice of initial hearing in a
newspaper of general circulation.

The trial court also cited Ministry of Justice Opinion No. 48, Series of 1982, which in its pertinent portion
provides:8

It bears emphasis that the publication requirement under Section 23 [of PD 1529] has a two-fold purpose; the
first, which is mentioned in the provision of the aforequoted provision refers to publication in the Official
Gazette, and is jurisdictional; while the second, which is mentioned in the opening clause of the same
paragraph, refers to publication not only in the Official Gazette but also in a newspaper of general circulation,
and is procedural. Neither one nor the other is dispensable. As to the first, publication in the Official Gazette is
indispensably necessary because without it, the court would be powerless to assume jurisdiction over a
particular land registration case. As to the second, publication of the notice of initial hearing also in a
newspaper of general circulation is indispensably necessary as a requirement of procedural due process;
otherwise, any decision that the court may promulgate in the case would be legally infirm.

Unsatisfied, private respondents appealed to Respondent Court of Appeals which, as earlier explained, set
aside the decision of the trial court and ordered the registration of the title in the name of Teodoro Abistado.

The subsequent motion for reconsideration was denied in the challenged CA Resolution dared November 19,
1991.

The Director of Lands represented by the Solicitor General thus elevated this recourse to us. This Court notes
that the petitioner's counsel anchored his petition on Rule 65. This is an error. His remedy should be based on
Rule 45 because he is appealing a final disposition of the Court of Appeals. Hence, we shall treat his petition as
one for review under Rule 45, and not for certiorari under Rule 65.9

The Issue

Petitioner alleges that Respondent Court of Appeals committed "grave abuse of discretion"10 in holding —

. . . that publication of the petition for registration of title in LRC Case No. 86 need not be published in a
newspaper of general circulation, and in not dismissing LRC Case No. 86 for want of such publication.

Petitioner points out that under Section 23 of PD 1529, the notice of initial hearing shall be "published both in
the Official Gazette and in a newspaper of general circulation." According to petitioner, publication in the
Official Gazette is "necessary to confer jurisdiction upon the trial court, and . . . in . . . a newspaper of general
circulation to comply with the notice requirement of due process."11

Private respondents, on the other hand, contend that failure to comply with the requirement of publication in
a newspaper of general circulation is a mere "procedural defect." They add that publication in the Official
Gazette is sufficient to confer jurisdiction.12

In reversing the decision of the trial court, Respondent Court of Appeals ruled:13

. . . although the requirement of publication in the Official Gazette and in a newspaper of general circulation is
couched in mandatory terms, it cannot be gainsaid that the law also mandates with equal force that
publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court.

Further, Respondent Court found that the oppositors were afforded the opportunity "to explain matters fully
and present their side." Thus, it justified its disposition in this wise:14

. . . We do not see how the lack of compliance with the required procedure prejudiced them in any way.
Moreover, the other requirements of: publication in the Official Gazette, personal notice by mailing, and
posting at the site and other conspicuous places, were complied with and these are sufficient to notify any
party who is minded to make any objection of the application for registration.

The Court's Ruling

We find for petitioner.

Newspaper Publication Mandatory

The pertinent part of Section 23 of Presidential Decree No. 1529 requiring publication of the notice of initial
hearing reads as follows:

Sec. 23. Notice of initial hearing, publication, etc. — The court shall, within five days from filing of the
application, issue an order setting the date and hour of the initial hearing which shall not be earlier than forty-
five days nor later than ninety days from the date of the order.

The public shall be given notice of initial hearing of the application for land registration by means of (1)
publication; (2) mailing; and (3) posting.

1. By publication. —

Upon receipt of the order of the court setting the time for initial hearing, the Commissioner of Land
Registration shall cause a notice of initial hearing to be published once in the Official Gazette and once in a
newspaper of general circulation in the Philippines: Provided, however, that the publication in the Official
Gazette shall be sufficient to confer jurisdiction upon the court. Said notice shall be addressed to all persons
appearing to have an interest in the land involved including the adjoining owners so far as known, and "to all
whom it may concern." Said notice shall also require all persons concerned to appear in court at a certain date
and time to show cause why the prayer of said application shall not be granted.
xxx xxx xxx

Admittedly, the above provision provides in clear and categorical terms that publication in the Official Gazette
suffices to confer jurisdiction upon the land registration court. However, the question boils down to whether,
absent any publication in a newspaper of general circulation, the land registration court can validly confirm and
register the title of private respondents.

We answer this query in the negative. This answer is impelled by the demands of statutory construction and
the due process rationale behind the publication requirement.

The law used the term "shall" in prescribing the work to be done by the Commissioner of Land Registration
upon the latter's receipt of the court order setting the time for initial hearing. The said word denotes an
imperative and thus indicates the mandatory character of a statute.15 While concededly such literal mandate
is not an absolute rule in statutory construction, as its import ultimately depends upon its context in the entire
provision, we hold that in the present case the term must be understood in its normal mandatory meaning. In
Republic vs. Marasigan,16 the Court through Mr. Justice Hilario G. Davide, Jr. held that Section 23 of PD 1529
requires notice of the initial hearing by means of (1) publication, (2) mailing and (3) posting, all of which must
be complied with. "If the intention of the law were otherwise, said section would not have stressed in detail
the requirements of mailing of notices to all persons named in the petition who, per Section 15 of the Decree,
include owners of adjoining properties, and occupants of the land." Indeed, if mailing of notices is essential,
then by parity of reasoning, publication in a newspaper of general circulation is likewise imperative since the
law included such requirement in its detailed provision.

It should be noted further that land registration is a proceeding in rem. 17 Being in rem, such proceeding
requires constructive seizure of the land as against all persons, including the state, who have rights to or
interests in the property. An in rem proceeding is validated essentially through publication. This being so, the
process must strictly be complied with. Otherwise, persons who may be interested or whose rights may be
adversely affected would be barred from contesting an application which they had no knowledge of. As has
been ruled, a party as an owner seeking the inscription of realty in the land registration court must prove by
satisfactory and conclusive evidence not only his ownership thereof but the identity of the same, for he is in
the same situation as one who institutes an action for recovery of realty.18 He must prove his title against the
whole world. This task, which rests upon the applicant, can best be achieved when all persons concerned —
nay, "the whole world" — who have rights to or interests in the subject property are notified and effectively
invited to come to court and show cause why the application should not be granted. The elementary norms of
due process require that before the claimed property is taken from concerned parties and registered in the
name of the applicant, said parties must be given notice and opportunity to oppose.

It may be asked why publication in a newspaper of general circulation should be deemed mandatory when the
law already requires notice by publication in the Official Gazette as well as by mailing and posting, all of which
have already been complied with in the case at hand. The reason is due process and the reality that the Official
Gazette is not as widely read and circulated as newspapers and is oftentimes delayed in its circulation, such
that the notices published therein may not reach the interested parties on time, if at all. Additionally, such
parties may not be owners of neighboring properties, and may in fact not own any other real estate. In sum,
the all-encompassing in rem nature of land registration cases, the consequences of default orders issued
against the whole world and the objective of disseminating the notice in as wide a manner as possible demand
a mandatory construction of the requirements for publication, mailing and posting.

Admittedly, there was failure to comply with the explicit publication requirement of the law. Private
respondents did not proffer any excuse; even if they had, it would not have mattered because the statute itself
allows no excuses. Ineludibly, this Court has no authority to dispense with such mandatory requirement. The
law is unambiguous and its rationale clear. Time and again, this Court has declared that where the law speaks
in clear and categorical language, there is no room for interpretation, vacillation or equivocation; there is room
only for application.19 There is no alternative. Thus, the application for land registration filed by private
respondents must be dismissed without prejudice to reapplication in the future, after all the legal requisites
shall have been duly complied with.

WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are REVERSED and SET ASIDE.
The application of private respondent for land registration is DISMISSED without prejudice. No costs.

SO ORDERED.
CARLOS ALONZO and CASIMIRA ALONZO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT and TECLA PADUA, respondents.

Perpetuo L.B. Alonzo for petitioners.

Luis R. Reyes for private respondent.

CRUZ, J.:

The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of law or
a court of justice. Do we apply the law even if it is unjust or do we administer justice even against the law?
Thus queried, we do not equivocate. The answer is that we do neither because we are a court both of law and
of justice. We apply the law with justice for that is our mission and purpose in the scheme of our Republic. This
case is an illustration.

Five brothers and sisters inherited in equal pro indiviso shares a parcel of land registered in 'the name of their
deceased parents under OCT No. 10977 of the Registry of Deeds of Tarlac. 1

On March 15, 1963, one of them, Celestino Padua, transferred his undivided share of the herein petitioners for
the sum of P550.00 by way of absolute sale. 2 One year later, on April 22, 1964, Eustaquia Padua, his sister,
sold her own share to the same vendees, in an instrument denominated "Con Pacto de Retro Sale," for the
sum of P 440.00. 3

By virtue of such agreements, the petitioners occupied, after the said sales, an area corresponding to two-
fifths of the said lot, representing the portions sold to them. The vendees subsequently enclosed the same
with a fence. In 1975, with their consent, their son Eduardo Alonzo and his wife built a semi-concrete house on
a part of the enclosed area.4
On February 25, 1976, Mariano Padua, one of the five coheirs, sought to redeem the area sold to the spouses
Alonzo, but his complaint was dismissed when it appeared that he was an American citizen .5 On May 27,
1977, however, Tecla Padua, another co-heir, filed her own complaint invoking the same right of redemption
claimed by her brother. 6

The trial court * also dismiss this complaint, now on the ground that the right had lapsed, not having been
exercised within thirty days from notice of the sales in 1963 and 1964. Although there was no written notice, it
was held that actual knowledge of the sales by the co-heirs satisfied the requirement of the law. 7

In truth, such actual notice as acquired by the co-heirs cannot be plausibly denied. The other co-heirs,
including Tecla Padua, lived on the same lot, which consisted of only 604 square meters, including the portions
sold to the petitioners . 8 Eustaquia herself, who had sold her portion, was staying in the same house with her
sister Tecla, who later claimed redemption petition. 9 Moreover, the petitioners and the private respondents
were close friends and neighbors whose children went to school together. 10

It is highly improbable that the other co-heirs were unaware of the sales and that they thought, as they
alleged, that the area occupied by the petitioners had merely been mortgaged by Celestino and Eustaquia. In
the circumstances just narrated, it was impossible for Tecla not to know that the area occupied by the
petitioners had been purchased by them from the other. co-heirs. Especially significant was the erection
thereon of the permanent semi-concrete structure by the petitioners' son, which was done without objection
on her part or of any of the other co-heirs.

The only real question in this case, therefore, is the correct interpretation and application of the pertinent law
as invoked, interestingly enough, by both the petitioners and the private respondents. This is Article 1088 of
the Civil Code, providing as follows:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from the time they were notified in writing of the sale by
the vendor.

In reversing the trial court, the respondent court ** declared that the notice required by the said article was
written notice and that actual notice would not suffice as a substitute. Citing the same case of De Conejero v.
Court of Appeals 11 applied by the trial court, the respondent court held that that decision, interpreting a like
rule in Article 1623, stressed the need for written notice although no particular form was required.

Thus, according to Justice J.B.L. Reyes, who was the ponente of the Court, furnishing the co-heirs with a copy
of the deed of sale of the property subject to redemption would satisfy the requirement for written notice. "So
long, therefore, as the latter (i.e., the redemptioner) is informed in writing of the sale and the particulars
thereof," he declared, "the thirty days for redemption start running. "

In the earlier decision of Butte v. UY, 12 " the Court, speaking through the same learned jurist, emphasized that
the written notice should be given by the vendor and not the vendees, conformably to a similar requirement
under Article 1623, reading as follows:
Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days
from the notice in writing by the prospective vendor, or by the vendors, as the case may be. The deed of sale
shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has
given written notice thereof to all possible redemptioners.

The right of redemption of co-owners excludes that of the adjoining owners.

As "it is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular method
of giving notice, and that notice must be deemed exclusive," the Court held that notice given by the vendees
and not the vendor would not toll the running of the 30-day period.

The petition before us appears to be an illustration of the Holmes dictum that "hard cases make bad laws" as
the petitioners obviously cannot argue against the fact that there was really no written notice given by the
vendors to their co-heirs. Strictly applied and interpreted, Article 1088 can lead to only one conclusion, to wit,
that in view of such deficiency, the 30 day period for redemption had not begun to run, much less expired in
1977.

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is
a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its
provisions the in tent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to
cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we
presume the good motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are
inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem
arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are
not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to
their language. What we do instead is find a balance between the word and the will, that justice may be done
even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding
like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by
sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words
import a policy that goes beyond them." 13 While we admittedly may not legislate, we nevertheless have the
power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the
law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment.
In doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to give effect to the law
maker's will.

The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read
according to its spirit or intent. For what is within the spirit is within the letter but although it is not within the
letter thereof, and that which is within the letter but not within the spirit is not within the statute. Stated
differently, a thing which is within the intent of the lawmaker is as much within the statute as if within the
letter; and a thing which is within the letter of the statute is not within the statute unless within the intent of
the lawmakers. 14
In requiring written notice, Article 1088 seeks to ensure that the redemptioner is properly notified of the sale
and to indicate the date of such notice as the starting time of the 30-day period of redemption. Considering
the shortness of the period, it is really necessary, as a general rule, to pinpoint the precise date it is supposed
to begin, to obviate any problem of alleged delays, sometimes consisting of only a day or two.

The instant case presents no such problem because the right of redemption was invoked not days but years
after the sales were made in 1963 and 1964. The complaint was filed by Tecla Padua in 1977, thirteen years
after the first sale and fourteen years after the second sale. The delay invoked by the petitioners extends to
more than a decade, assuming of course that there was a valid notice that tolled the running of the period of
redemption.

Was there a valid notice? Granting that the law requires the notice to be written, would such notice be
necessary in this case? Assuming there was a valid notice although it was not in writing. would there be any
question that the 30-day period for redemption had expired long before the complaint was filed in 1977?

In the face of the established facts, we cannot accept the private respondents' pretense that they were
unaware of the sales made by their brother and sister in 1963 and 1964. By requiring written proof of such
notice, we would be closing our eyes to the obvious truth in favor of their palpably false claim of ignorance,
thus exalting the letter of the law over its purpose. The purpose is clear enough: to make sure that the
redemptioners are duly notified. We are satisfied that in this case the other brothers and sisters were actually
informed, although not in writing, of the sales made in 1963 and 1964, and that such notice was sufficient.

Now, when did the 30-day period of redemption begin?

While we do not here declare that this period started from the dates of such sales in 1963 and 1964, we do say
that sometime between those years and 1976, when the first complaint for redemption was filed, the other
co-heirs were actually informed of the sale and that thereafter the 30-day period started running and
ultimately expired. This could have happened any time during the interval of thirteen years, when none of the
co-heirs made a move to redeem the properties sold. By 1977, in other words, when Tecla Padua filed her
complaint, the right of redemption had already been extinguished because the period for its exercise had
already expired.

The following doctrine is also worth noting:

While the general rule is, that to charge a party with laches in the assertion of an alleged right it is essential
that he should have knowledge of the facts upon which he bases his claim, yet if the circumstances were such
as should have induced inquiry, and the means of ascertaining the truth were readily available upon inquiry,
but the party neglects to make it, he will be chargeable with laches, the same as if he had known the facts. 15

It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo, who were not among
them, should enclose a portion of the inherited lot and build thereon a house of strong materials. This
definitely was not the act of a temporary possessor or a mere mortgagee. This certainly looked like an act of
ownership. Yet, given this unseemly situation, none of the co-heirs saw fit to object or at least inquire, to
ascertain the facts, which were readily available. It took all of thirteen years before one of them chose to claim
the right of redemption, but then it was already too late.
We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law, which the
respondent court understandably applied pursuant to existing jurisprudence. The said court acted properly as
it had no competence to reverse the doctrines laid down by this Court in the above-cited cases. In fact, and
this should be clearly stressed, we ourselves are not abandoning the De Conejero and Buttle doctrines. What
we are doing simply is adopting an exception to the general rule, in view of the peculiar circumstances of this
case.

The co-heirs in this case were undeniably informed of the sales although no notice in writing was given them.
And there is no doubt either that the 30-day period began and ended during the 14 years between the sales in
question and the filing of the complaint for redemption in 1977, without the co-heirs exercising their right of
redemption. These are the justifications for this exception.

More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render every
one his due." 16 That wish continues to motivate this Court when it assesses the facts and the law in every
case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus when the facts
warrants, we interpret the law in a way that will render justice, presuming that it was the intention of the
lawmaker, to begin with, that the law be dispensed with justice. So we have done in this case.

WHEREFORE, the petition is granted. The decision of the respondent court is REVERSED and that of the trial
court is reinstated, without any pronouncement as to costs. It is so ordered.
G.R. No. L-53766 October 30, 1981

MARIA C. RAMOS, petitioner,

vs.
COURT OF APPEALS, Judge JESUS R. DE VEGA of the Court of First Instance of Bulacan Malolos Branch II and
the MUNICIPALITY OF HAGONOY Bulacan, respondents.

AQUINO, J.:

This case is about the legality of a municipality's hiring of private counsel to file a suit in its behalf. The
municipality of Hagonoy, Bulacan, through the law firm of Cruz Durian & Academia (now Cruz Durian Agabin
Atienza & Alday), sued in the Court of First Instance of Bulacan Marciano Domingo, Leonila Guzman, Maria C.
Ramos and Consorcio Cruz for the recovery of its 74-hectare fishpond (Civil Case No. 5095-M).

In paragraph 19 of the complaint it was alleged that the municipality had obligated itself to pay Cruz Durian &
Academia as attorney's fees not less than twenty percent of the amount to be recovered by the plaintiff (p. 44,
Rollo).

The provincial fiscal of Bulacan and the municipal attorney of Hagonoy entered their appearance as counsel for
the municipality with the manifestation that its private counsel would be under the control and supervision of
those officials. Notwithstanding that appearance, Domingo and Maria C. Ramos (lessee and sublessee of the
fishpond) moved to disqualify the Cruz law firm from serving as counsel of the municipality.

The trial court denied the motion. It found that Angel Cruz, the head of the law firm, volunteered to act as
counsel for the municipality because he desired to serve his native town.
Ramos and Domingo assailed that order by means of certiorari in the Court of Appeals which in a decision
dated February 15, 1979 sustained the trial court (Ramos vs. Judge Jesus R. de Vega, et al., CA-G.R. No. SP-
7728-R). Ramos brought the case to this Court.

We hold that the trial court and the Court of Appeals erred in allowing the Cruz law firm to act as counsel for
the municipality in collaboration with the fiscal and the municipal attorney.

That ruling constitutes a grave abuse of discretion because it is manifestly a transgression of section 1683 of
the Revised Administrative Code which provides that "the provincial fiscal shall represent the province and any
municipality or municipal district thereof in any court, except in cases whereof original jurisdiction is vested in
the Supreme Court or in cases where the municipality or municipal district in question is a party adverse to the
provincial government or to some other municipality or municipal district in the same province. When the
interests of a provincial government and of any political division thereof are opposed, the provincial fiscal shall
act on behalf of the province. When the provincial fiscal is disqualified to serve any municipality or other
political subdivision of a province, a special attorney may be employed by its council.

The legislative intent to prohibit a municipality from employing private counsel in its lawsuits is further
implemented by section 3 of the Local Autonomy Act, Republic Act No. 2264, which provides that the
municipal attorney, as the head of the legal division or office of a municipality, "shall act as legal counsel of the
municipality and perform such duties and exercise such powers as may be assigned to him by the council" The
municipal attorney is paid out of municipal funds (Sec. 4, Republic Act No. 5185, Decentralization Act of 1967).
He can represent the municipality even without the fiscal's collaboration (Calleja vs. Court of Appeals, L-22501,
July 31,1967,20 SCRA 895).

The questioned-ruling of the two courts also contravenes settled jurisprudence. Applying section 1683, it was
held that the municipality's authority to employ a private lawyer is expressly limited only to situations where
the provincial fiscal is disqualified to represent it (De Guia vs. Auditor General; L-29824, March 29, 197 2, 44
SCRA 169. See Reyes vs. Cornista, 92 Phil. 838, Municipality of Bocaue vs. Manotok, 93 Phil. 173; Enriquez vs.
Gimenez, 107 Phil. 932).

Evidently, the lawmaker in requiring that the municipality should be represented in its court cases by a
government lawyer like its municipal attorney and the provincial fiscal intended that the municipality should
not be burdened with the expenses of hiring a private lawyer. The lawmaker also assumed that the interests of
the municipality would be best protected if a government lawyer handles its litigations.

It is to be expected that the municipal attorney and the fiscal would be faithful and dedicated to the
municipality's interests and that, as civil service employees, they could be held accountable for any misconduct
or dereliction of duty.

The Court of Appeals perceived nothing illegal in allowing the Cruz Law Office to represent the municipality of
Hagonoy because lawyer Cruz offered his legal services gratis. Petitioner Ramos in her second motion for
reconsideration called the Court's attention to paragraph 19 of the complaint wherein the Cruz law firm
alleged that the municipality had contracted to pay its lawyer a 20% contingent fee.
The Court of Appeals in a resolution dated December 6, 1979 said that there was no cogent reason to
reconsider, its decision but at the same time it gave the Cruz law firm fifteen days from notice within which "to
amend the answer (should be complaint) in the trail court by "deleting therefrom the claim for attorney's fees"
and to report such amendment to the Court of Appeals; otherwise, it would "motu proprio reconsider its
decision".

Obviously, the Appellate Court wanted the complaint to conform to its erroneous factual finding that the Cruz
law firm was serving as counsel without compensation. It did not notice that its resolution was ambivalent
because while it denied the second motion for reconsideration, in the same breath it threatened to
"reconsider its decision" if the complaint was not amended.

Following that directive, the Cruz law firm filed in the trial court an amended complaint dated December 31,
1979 containing the allegation in paragraph 19 thereof that the municipality was forced to retain the Cruz law
firm "as additional counsel under the control and supervision of plaintiff's principal attorneys and/or the
Provincial Fiscal without any obligation to pay attorney's fees". The prayer for the payment of attorney's fees in
the original complaint was eliminated in the amended complaint.

Ramos contended in the trial court and in the Court of Appeals that the trial court could not admit the
amended complaint because it was immobilized by the restraining order issued by the Court of Appeals. The
Court of Appeals did not resolve that contention.

On May 7, 1980, Ramos filed in this Court her petition for certiorari, mandamus and prohibition wherein she
prayed that the Court of Appeals be directed to resolve the issue raised in her second motion for
reconsideration and that the amended complaint should not be taken into consideration because it was
improperly admitted by the trial court.

Although the Court of Appeals was furnished on May 7, 1980 with a copy of that petition, it, nevertheless,
issued a resolution dated May 22, 1981 requiring the Cruz law firm to inform it of "the further development on
the matter" (p. 113, Rollo).

This Court treated Ramos' petition as an appeal from the Appellate Court's decision. Ramos was confused as to
when she would appeal from that decision because, as noted earlier, while the Appellate Court denied her
second motion for reconsideration, the denial was not final since it was accompanied by the warning that it
would "reconsider its decision" if the complaint was not amended to eliminate the claim of the Cruz law firm
for attorney's fees. Hence, the alleged tardiness of the petition was excusable.

The fact that the municipal attorney and the fiscal are supposed to collaborate with a private law firm does not
legalize the latter's representation of the municipality of Hagonoy in Civil Case No. 5095-M. While a private
prosecutor is allowed in criminal cases, an analogous arrangement is not allowed in civil cases wherein a
municipality is the plaintiff.

Section 1683 of the Revised Administrative Code, as complemented by section 3 of the Local Autonomy Law is
clear in providing that only the provincial fiscal and the municipal attorney can represent a municipality in its
lawsuits. That provision is mandatory.
The law being clear and unmistakable, there is no room for interpretation or for engrafting upon it exceptions
or qualifications not contemplated therein. As observed by Justice Moreland:

Where language is plain, subtle refinements which tinge words so as to give them the color of a particular
judicial theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in
the law, which has made it so difficult for the public to understand and know what the law is with respect to a
given matter, is in considerable measure the unwarranted interference by judicial tribunals with the English
language as found in statutes and contracts, cutting out words here and inserting them there, making them fit
personal Ideas of what the legislature ought to have done or what parties should have agreed upon, giving
them meanings which they do not ordinarily have, cutting, trimming, fitting, changing and coloring until
lawyers themselves are unable to advise their clients as to the meaning of a given statute or contract until it
has been submitted to some court for its 'interpretation and construction (Yangco vs. Court of First Instance of
Manila, 29 Phil. 183,188).

Construction and interpretation come only after it has been demonstrated that application is impossible or
inadequate without them. They are the very last functions which a court should exercise. The majority of the
laws need no interpretation or construction. They require only application, and if there were more application
and less construction, there would be more stability in the law, and more people would know what the law is.
(Lizarraga Hermanos vs. Yap Tico, 24 Phil. 504, 513).

WHEREFORE, the decision of the Court of Appeals is reversed and set aside. We hereby declare that the
appearance in the aforementioned case of Cruz Durian Agabin Atienza & Alday as counsel for the municipality
of Hagonoy is contrary to law. The municipality should be represented by its municipal attorney and by the
provincial fiscal of Bulacan. The restraining order is lifted. No costs.

SO ORDERED.
G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,

vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City
alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed,
insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity
and personality," contrary to morals, good customs and public policy."1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages,
attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests
and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was
culled from a tape recording of the confrontation made by petitioner.2 The transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka
napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m.,
kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa
review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union
kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own
makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).

CHUCHI — Itutuloy ko na M'am sana ang duty ko.

ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko
naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito
kung hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-
ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko.
ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok,
okey yan nasaloob ka umalis ka doon.

CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.

ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako.
Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

CHUCHI — Ina-ano ko m'am na utang na loob.

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka.3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the
confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City
for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related
violations of private communication, and other purposes." An information charging petitioner of violation of
the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200,
committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the
jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by
Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully, unlawfully and
feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate
in writing the contents of the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA
Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the
facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the
trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an
offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a
communication by a person other than a participant to the communication.4
From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court,
which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19,
1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's
order of May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing
the information based on the ground that the facts alleged do not constitute an offense, the respondent judge
acted in grave abuse of discretion correctible by certiorari.5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of
Appeals denied in its Resolution6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision of Republic Act
4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She
contends that the provision merely refers to the unauthorized taping of a private conversation by a party other
than those involved in the communication.8 In relation to this, petitioner avers that the substance or content
of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a
violation of R.A. 4200.9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private
communication," not a "private conversation" and that consequently, her act of secretly taping her
conversation with private respondent was not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of a
statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would
be resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an
injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of
Private Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise
described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the
parties to any private communication to secretly record such communication by means of a tape recorder. The
law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party
other than or different from those involved in the private communication. The statute's intent to penalize all
persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently,
as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records
his private conversation with another without the knowledge of the latter (will) qualify as a violator" 13 under
this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in
enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private
conversations or communications taken either by the parties themselves or by third persons. Thus:

xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to
be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and
involved not criminal cases that would be mentioned under section 3 but would cover, for example civil cases
or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in
an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even
subsequent to the contract or the act may be indicative of their intention. Suppose there is such a recording,
would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside?

Senator Tañada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be
used in Civil Cases or special proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without the
authorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one
without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your
honor, is to record the intention of the parties. I believe that all the parties should know that the observations
are being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a
tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose
remarks and observations are being made should know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand. Now, in spite of
that warning, he makes damaging statements against his own interest, well, he cannot complain any more. But
if you are going to take a recording of the observations and remarks of a person without him knowing that it is
being taped or recorded, without him knowing that what is being recorded may be used against him, I think it
is unfair.

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a
party secretly records a public speech, he would be penalized under Section 1? Because the speech is public,
but the recording is done secretly.

Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication
between one person and another person — not between a speaker and a public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted deliberations
from the Congressional Record, therefore plainly supports the view held by the respondent court that the
provision seeks to penalize even those privy to the private communications. Where the law makes no
distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same
need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly
overhearing, intercepting or recording private communications by means of the devices enumerated therein.
The mere allegation that an individual made a secret recording of a private communication by means of a tape
recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed
out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one
can be regarded as a violator, the nature of the conversation, as well as its communication to a third person
should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not
include "private conversations" narrows the ordinary meaning of the word "communication" to a point of
absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart."
In its ordinary signification, communication connotes the act of sharing or imparting signification,
communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by
which meanings or thoughts are shared between individuals through a common system of symbols (as
language signs or gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or
expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged
exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's
office. Any doubts about the legislative body's meaning of the phrase "private communication" are,
furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably
used by Senator Tañada in his Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being overheard. But this
statement ignores the usual nature of conversations as well the undeniable fact that most, if not all, civilized
people have some aspects of their lives they do not wish to expose. Free conversations are often characterized
by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not
intended to be taken seriously. The right to the privacy of communication, among others, has expressly been
assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the
nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and
of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the
unaudited, and free exchange of communication between individuals — free from every unjustifiable intrusion
by whatever means.17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we
held that the use of a telephone extension for the purpose of overhearing a private conversation without
authorization did not violate R.A. 4200 because a telephone extension devise was neither among those
"device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be
construed strictly in favor of the accused."20 The instant case turns on a different note, because the applicable
facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself
explicitly mentions the unauthorized "recording" of private communications with the use of tape-recorders as
among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no
discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against
petitioner.

SO ORDERED.
G.R. No. 168338 February 15, 2008

FRANCISCO CHAVEZ, petitioner,

vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL
TELECOMMUNICATIONS COMMISSION (NTC), respondents.

DECISION

PUNO, C.J.:

A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right
to free speech and free expression, that any attempt to restrict it must be met with an examination so critical
that only a danger that is clear and present would be allowed to curtail it.

Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and
issuances meant to curtail this right, as in Adiong v. COMELEC,1 Burgos v. Chief of Staff,2 Social Weather
Stations v. COMELEC,3 and Bayan v. Executive Secretary Ermita.4 When on its face, it is clear that a
governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be
nullified.

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5,
2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the
administration by releasing an audiotape of a mobile phone conversation allegedly between the President of
the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections
(COMELEC). The conversation was audiotaped allegedly through wire-tapping.5 Later, in a Malacañang press
briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the
other, a spliced, "doctored" or altered version, which would suggest that the President had instructed the
COMELEC official to manipulate the election results in the President’s favor. 6 It seems that Secretary Bunye
admitted that the voice was that of President Arroyo, but subsequently made a retraction. 7

2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently
released an alleged authentic tape recording of the wiretap. Included in the tapes were purported
conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano,
and the late Senator Barbers.8

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that
those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held
liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated
that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by
anybody who had personal knowledge if the crime was committed or was being committed in their presence.9

4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation
(NBI) to go after media organizations "found to have caused the spread, the playing and the printing of the
contents of a tape" of an alleged wiretapped conversation involving the President about fixing votes in the
2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the
Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it
was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the
editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, "I [have] asked the NBI to
conduct a tactical interrogation of all concerned." 10

5. On June 11, 2005, the NTC issued this press release: 11

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING
LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS

xxx xxx xxx

Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate the
same, the NTC warns all radio stations and television network owners/operators that the conditions of the
authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of
Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or
telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of
the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve
the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election
laws.

These personalities have admitted that the taped conversations are products of illegal wiretapping operations.

Considering that these taped conversations have not been duly authenticated nor could it be said at this time
that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of
the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television
stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority
and/or Certificate of Authority issued to these radio and television stations. It has been subsequently
established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the
concerned radio and television companies are hereby warned that their broadcast/airing of such false
information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or
cancellation of the licenses or authorizations issued to the said companies.

In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed
by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that "all
radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the
speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate
false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or
sedition." The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in
addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast
or telecast any speech, language or scene disseminating false information or willful misrepresentation, or
inciting, encouraging or assisting in subversive or treasonable acts.

The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the
provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their
owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa
Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom
of speech, of expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a
Joint Press Statement which states, among others, that: 12

NTC respects and will not hinder freedom of the press and the right to information on matters of public
concern. KBP & its members have always been committed to the exercise of press freedom with high sense of
responsibility and discerning judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or
censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the
opposition or free expression of views.
What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
KBP has program standards that KBP members will observe in the treatment of news and public affairs
programs. These include verification of sources, non-airing of materials that would constitute inciting to
sedition and/or rebellion.
The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of
news or commentaries.
The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due
consideration to the process being undertaken to verify and validate the authenticity and actual content of the
same."
C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales
and the NTC, "praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal
remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of
authority by the respondents."13

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the
right of the people to information on matters of public concern,14 petitioner specifically asked this Court:

[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005
until the present that curtail the public’s rights to freedom of expression and of the press, and to information
on matters of public concern specifically in relation to information regarding the controversial taped
conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such
issuances, and orders by respondents. 15

Respondents16 denied that the acts transgress the Constitution, and questioned petitioner’s legal standing to
file the petition. Among the arguments they raised as to the validity of the "fair warning" issued by respondent
NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning
was issued pursuant to the NTC’s mandate to regulate the telecommunications industry. 17 It was also stressed
that "most of the [television] and radio stations continue, even to this date, to air the tapes, but of late within
the parameters agreed upon between the NTC and KBP." 18

D. The Procedural Threshold: Legal Standing

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a
member of the broadcast media, prays that we strike down the acts and statements made by respondents as
violations of the right to free speech, free expression and a free press. For another, the recipients of the press
statements have not come forward—neither intervening nor joining petitioner in this action. Indeed, as a
group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom
of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege "such a
personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the Court so largely depends for illumination of difficult constitutional
questions." 19

But as early as half a century ago, we have already held that where serious constitutional questions are
involved, "the transcendental importance to the public of these cases demands that they be settled promptly
and definitely, brushing aside if we must, technicalities of procedure." 20 Subsequently, this Court has
repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and
resolving serious legal questions that greatly impact on public interest,21 in keeping with the Court's duty
under the 1987 Constitution to determine whether or not other branches of government have kept themselves
within the limits of the Constitution and the laws and that they have not abused the discretion given to them.

Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching
significance to our society,22 we therefore brush aside technicalities of procedure and take cognizance of this
petition,23 seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of
expression. The petition raises other issues like the extent of the right to information of the public. It is
fundamental, however, that we need not address all issues but only the most decisive one which in the case at
bar is whether the acts of the respondents abridge freedom of speech and of the press.

But aside from the primordial issue of determining whether free speech and freedom of the press have been
infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech
and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches
and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral
and content-based regulations and their constitutional standard of review; (4) to examine the historical
difference in the treatment of restraints between print and broadcast media and stress the standard of review
governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and
broadcast media.

E. Re-examining The law on freedom of speech,

of expression and of the press

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.24

Freedom of expression has gained recognition as a fundamental principle of every democratic government,
and given a preferred right that stands on a higher level than substantive economic freedom or other liberties.
The cognate rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First
Amendment of the U.S. Bill of Rights,25 were considered the necessary consequence of republican institutions
and the complement of free speech.26 This preferred status of free speech has also been codified at the
international level, its recognition now enshrined in international law as a customary norm that binds all
nations.27

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of
our constitutional system. 28 This right was elevated to constitutional status in the 1935, the 1973 and the
1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an
indispensable condition for nearly every other form of freedom.29 Moreover, our history shows that the
struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the
indispensable preconditions for the exercise of other freedoms.30 For it is only when the people have
unbridled access to information and the press that they will be capable of rendering enlightened judgments. In
the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

E.1. Abstraction of Free Speech

Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of
our own Bill of Rights provision on this basic freedom.31 What is embraced under this provision was discussed
exhaustively by the Court in Gonzales v. Commission on Elections, 32 in which it was held:

…At the very least, free speech and free press may be identified with the liberty to discuss publicly and
truthfully any matter of public interest without censorship and punishment. There is to be no previous
restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition,
or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil
that Congress has a right to prevent. 33

Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is
undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring
participation by the people in social, including political, decision-making; and of maintaining the balance
between stability and change.34 As early as the 1920s, the trend as reflected in Philippine and American
decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee.
The trend represents a profound commitment to the principle that debate on public issue should be
uninhibited, robust, and wide-open. 35

Freedom of speech and of the press means something more than the right to approve existing political beliefs
or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of
opinion on any matter of public consequence.36 When atrophied, the right becomes meaningless.37 The right
belongs as well -- if not more – to those who question, who do not conform, who differ.38 The ideas that may
be expressed under this freedom are confined not only to those that are conventional or acceptable to the
majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the
articulation of the unorthodox view, though it be hostile to or derided by others; or though such view "induces
a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."39 To
paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees
with us. 40

The scope of freedom of expression is so broad that it extends protection to nearly all forms of
communication. It protects speech, print and assembly regarding secular as well as political causes, and is not
confined to any particular field of human interest. The protection covers myriad matters of public interest or
concern embracing all issues, about which information is needed or appropriate, so as to enable members of
society to cope with the exigencies of their period. The constitutional protection assures the broadest possible
exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends,
inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression
of ideas that are conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech
extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in
Eastern Broadcasting Corporation (DYRE) v. Dans,41 this Court stated that all forms of media, whether print or
broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression.

While all forms of communication are entitled to the broad protection of freedom of expression clause, the
freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to
newspapers and other print media, as will be subsequently discussed.
E.2. Differentiation: The Limits & Restraints of Free Speech

From the language of the specific constitutional provision, it would appear that the right to free speech and a
free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal
interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom
of expression is not an absolute, 42 nor is it an "unbridled license that gives immunity for every possible use of
language and prevents the punishment of those who abuse this freedom."

Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the
State under its pervasive police power, in order that it may not be injurious to the equal right of others or
those of the community or society.43 The difference in treatment is expected because the relevant interests of
one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions
have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions
on various categories of speech. 44 We have ruled, for example, that in our jurisdiction slander or libel, lewd
and obscene speech, as well as "fighting words" are not entitled to constitutional protection and may be
penalized.45

Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on)
have been applied differently to each category, either consciously or unconsciously. 46 A study of free speech
jurisprudence—whether here or abroad—will reveal that courts have developed different tests as to specific
types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the
broadcast media and of the traditional print media; libelous speech; speech affecting associational rights;
speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech
associated with rights of assembly and petition. 47

Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three
tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection
has been established between the speech restrained and the danger contemplated; 48 (b) the balancing of
interests tests, used as a standard when courts need to balance conflicting social values and individual
interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given
situation of type of situation; 49 and (c) the clear and present danger rule which rests on the premise that
speech may be restrained because there is substantial danger that the speech will likely lead to an evil the
government has a right to prevent. This rule requires that the evil consequences sought to be prevented must
be substantive, "extremely serious and the degree of imminence extremely high." 50

As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and
present danger test to resolve free speech challenges. More recently, we have concluded that we have
generally adhered to the clear and present danger test. 51

E.3. In Focus: Freedom of the Press

Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion
and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on
current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is
the instrument by which citizens keep their government informed of their needs, their aspirations and their
grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a
vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. As Justice
Malcolm wrote in United States v. Bustos:52

The interest of society and the maintenance of good government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and
unjust accusation; the wound can be assuaged with the balm of clear conscience.

Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press
benefits from certain ancillary rights. The productions of writers are classified as intellectual and proprietary.
Persons who interfere or defeat the freedom to write for the press or to maintain a periodical publication are
liable for damages, be they private individuals or public officials.

E.4. Anatomy of Restrictions: Prior Restraint, Content-Neutral and Content-Based Regulations

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects
of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent
to publication; 53 (3) freedom of access to information; 54 and (4) freedom of circulation.55

Considering that petitioner has argued that respondents’ press statement constitutes a form of impermissible
prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as
distinguished from content-neutral) regulations.

At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints.
This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving
prior restrictions on speech never had any issue of whether the governmental act or issuance actually
constituted prior restraint. Rather, the determinations were always about whether the restraint was justified
by the Constitution.

Be that as it may, the determination in every case of whether there is an impermissible restraint on the
freedom of speech has always been based on the circumstances of each case, including the nature of the
restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a case-
to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in
which they operate, and then determining the appropriate test with which to evaluate.

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance
of actual publication or dissemination.56 Freedom from prior restraint is largely freedom from government
censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the
executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required
approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of
license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the
business and printing offices of certain newspapers, resulting in the discontinuation of their printing and
publication, are deemed as previous restraint or censorship. 57 Any law or official that requires some form of
permission to be had before publication can be made, commits an infringement of the constitutional right, and
remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and
any act that restrains speech is presumed invalid,58 and "any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed brows," 59 it is important to stress not all prior
restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but
determined only upon a careful evaluation of the challenged act as against the appropriate test by which it
should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on
freedom of speech. A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e.,
merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and
under well defined standards;60 or (2) a content-based restraint or censorship, i.e., the restriction is based on
the subject matter of the utterance or speech. 61 The cast of the restriction determines the test by which the
challenged act is assayed with.

When the speech restraints take the form of a content-neutral regulation, only a substantial governmental
interest is required for its validity.62 Because regulations of this type are not designed to suppress any
particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach
—somewhere between the mere rationality that is required of any other law and the compelling interest
standard applied to content-based restrictions.63 The test is called intermediate because the Court will not
merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote
an important or significant governmental interest that is unrelated to the suppression of expression. The
intermediate approach has been formulated in this manner:

A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it
furthers an important or substantial governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is
no greater than is essential to the furtherance of that interest. 64

On the other hand, a governmental action that restricts freedom of speech or of the press based on content is
given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster,65 with the government having
the burden of overcoming the presumed unconstitutionality.

Unless the government can overthrow this presumption, the content-based restraint will be struck down.66

With respect to content-based restrictions, the government must also show the type of harm the speech
sought to be restrained would bring about— especially the gravity and the imminence of the threatened harm
– otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified
by hypothetical fears, "but only by showing a substantive and imminent evil that has taken the life of a reality
already on ground."67 As formulated, "the question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of proximity and degree."68

The regulation which restricts the speech content must also serve an important or substantial government
interest, which is unrelated to the suppression of free expression. 69
Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that
interest. 70 A restriction that is so broad that it encompasses more than what is required to satisfy the
governmental interest will be invalidated. 71 The regulation, therefore, must be reasonable and narrowly
drawn to fit the regulatory purpose, with the least restrictive means undertaken. 72

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate
review. A content-based regulation,73 however, bears a heavy presumption of invalidity and is measured
against the clear and present danger rule. The latter will pass constitutional muster only if justified by a
compelling reason, and the restrictions imposed are neither overbroad nor vague. 74

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear
and present danger rule, as they are content-based restrictions. The acts of respondents focused solely on but
one object—a specific content— fixed as these were on the alleged taped conversations between the
President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place
or manner of the dissemination of speech or expression.

E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents’ argument that the challenged act is valid on the ground that broadcast media
enjoys free speech rights that are lesser in scope to that of print media. We next explore and test the validity
of this argument, insofar as it has been invoked to validate a content-based restriction on broadcast media.

The regimes presently in place for each type of media differ from one other. Contrasted with the regime in
respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have
been subjected to regulatory schemes.

The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast
radio and television have been held to have limited First Amendment protection,75 and U.S. Courts have
excluded broadcast media from the application of the "strict scrutiny" standard that they would otherwise
apply to content-based restrictions.76 According to U.S. Courts, the three major reasons why broadcast media
stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates [i.e.,
airwaves are physically limited while print medium may be limitless]; 77 (b) its "pervasiveness" as a medium;
and (c) its unique accessibility to children.78 Because cases involving broadcast media need not follow
"precisely the same approach that [U.S. courts] have applied to other media," nor go "so far as to demand that
such regulations serve ‘compelling’ government interests,"79 they are decided on whether the "governmental
restriction" is narrowly tailored to further a substantial governmental interest,"80 or the intermediate test.

As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment
between broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will
show that—as we have deviated with the American conception of the Bill of Rights81— we likewise did not
adopt en masse the U.S. conception of free speech as it relates to broadcast media, particularly as to which
test would govern content-based prior restraints.

Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the
regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly
confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a
compelling government interest that also has constitutional protection, such as national security or the
electoral process.

Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently
held that the clear and present danger test applies to content-based restrictions on media, without making a
distinction as to traditional print or broadcast media.

The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting
Corporation (DYRE) v. Dans,82 wherein it was held that "[a]ll forms of media, whether print or broadcast, are
entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on
freedom of expression continues to be the clear and present danger rule…"83

Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds
of national security. Although the issue had become moot and academic because the owners were no longer
interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as
guidelines for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a
detailed exposition as to what needs be considered in cases involving broadcast media. Thus:84

xxx xxx xxx

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of
speech and expression clause. The test for limitations on freedom of expression continues to be the clear and
present danger rule, that words are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In
his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least
nine of our decisions which apply the test. More recently, the clear and present danger test was applied in
J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger test, however,
does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.

Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast
corporation cannot simply appropriate a certain frequency without regard for government regulation or for the
rights of others.

All forms of communication are entitled to the broad protection of the freedom of expression clause.
Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted
with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than
other forms of communications, receives the most limited protection from the free expression clause. First,
broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented
over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting
is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making
certain material available to children, but the same selectivity cannot be done in radio or television, where the
listener or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.

The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos.
Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities
accessible to fast and regular transportation. Even here, there are low income masses who find the cost of
books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce
enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also becoming universal.
Their message may be simultaneously received by a national or regional audience of listeners including the
indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials
broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion,
persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech
would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike
readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the
utterance.

(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media
into account. The supervision of radio stations-whether by government or through self-regulation by the
industry itself calls for thoughtful, intelligent and sophisticated handling.

The government has a right to be protected against broadcasts which incite the listeners to violently overthrow
it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At
the same time, the people have a right to be informed. Radio and television would have little reason for
existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are
the most convenient and popular means of disseminating varying views on public issues, they also deserve
special protection.

(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the
1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that.

The interest of society and the maintenance of good government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not
be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity
of the individual be exalted.

(7) Broadcast stations deserve the special protection given to all forms of media by the due process and
freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify
differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after
categorically declaring that "the test for limitations on freedom of expression continues to be the clear and
present danger rule," for all forms of media, whether print or broadcast. Indeed, a close reading of the above-
quoted provisions would show that the differentiation that the Court in Dans referred to was narrowly
restricted to what is otherwise deemed as "unprotected speech" (e.g., obscenity, national security, seditious
and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast
frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to
broadcast media was "somewhat lesser in scope than the freedom accorded to newspaper and print media," it
was not as to what test should be applied, but the context by which requirements of licensing, allocation of
airwaves, and application of norms to unprotected speech. 85

In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,86 that the test to
determine free expression challenges was the clear and present danger, again without distinguishing the
media.87 Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the
issue involved obscenity standards as applied to movies,88 the Court concluded its decision with the following
obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to
motion pictures:

All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion
pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for
observance. This is so because unlike motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely be among the avid viewers of the programs
therein shown…..It cannot be denied though that the State as parens patriae is called upon to manifest an
attitude of caring for the welfare of the young.

More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a
broadcast company, we reiterated that the clear and present danger rule is the test we unquestionably adhere
to issues that involve freedoms of speech and of the press.89

This is not to suggest, however, that the clear and present danger rule has been applied to all cases that
involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged
act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v.
COMELEC,90 which also involved broadcast media, the Court refused to apply the clear and present danger
rule to a COMELEC regulation of time and manner of advertising of political advertisements because the
challenged restriction was content-neutral.91 And in a case involving due process and equal protection issues,
the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC92 treated a
restriction imposed on a broadcast media as a reasonable condition for the grant of the media’s franchise,
without going into which test would apply.

That broadcast media is subject to a regulatory regime absent in print media is observed also in other
jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing,
regulation by administrative bodies, and censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a number of
respects, but have a common historical basis. The stricter system of controls seems to have been adopted in
answer to the view that owing to their particular impact on audiences, films, videos and broadcasting require a
system of prior restraints, whereas it is now accepted that books and other printed media do not. These media
are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm.93
Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was
thought to provide a rationale. However, cable and satellite television have enormously increased the number
of actual and potential channels. Digital technology will further increase the number of channels available. But
still, the argument persists that broadcasting is the most influential means of communication, since it comes
into the home, and so much time is spent watching television. Since it has a unique impact on people and
affects children in a way that the print media normally does not, that regulation is said to be necessary in order
to preserve pluralism. It has been argued further that a significant main threat to free expression—in terms of
diversity—comes not from government, but from private corporate bodies. These developments show a need
for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. 94

The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications
and the computer industry -- has likewise led to the question of whether the regulatory model for
broadcasting will continue to be appropriate in the converged environment.95 Internet, for example, remains
largely unregulated, yet the Internet and the broadcast media share similarities, 96 and the rationales used to
support broadcast regulation apply equally to the Internet.97 Thus, it has been argued that courts, legislative
bodies and the government agencies regulating media must agree to regulate both, regulate neither or
develop a new regulatory framework and rationale to justify the differential treatment. 98

F. The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its
application to the case at bar. To recapitulate, a governmental action that restricts freedom of speech or of the
press based on content is given the strictest scrutiny, with the government having the burden of overcoming
the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of
media, including broadcast media.

This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test;
(b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of
evidence necessary. On the basis of the records of the case at bar, respondents who have the burden to show
that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present
danger test. It appears that the great evil which government wants to prevent is the airing of a tape recording
in alleged violation of the anti-wiretapping law. The records of the case at bar, however, are confused and
confusing, and respondents’ evidence falls short of satisfying the clear and present danger test. Firstly, the
various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly,
the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions,
one supposed to be a "complete" version and the other, an "altered" version. Thirdly, the evidence of the
respondents on the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tape’s
different versions. The identity of the wire-tappers, the manner of its commission and other related and
relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is
even arguable whether its airing would violate the anti-wiretapping law.

We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the
press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if
violated have only an adverse effect on a person’s private comfort but does not endanger national security.
There are laws of great significance but their violation, by itself and without more, cannot support suppression
of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be
weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious
effects of the violation to private and public interest must be calibrated in light of the preferred status
accorded by the Constitution and by related international covenants protecting freedom of speech and of the
press. In calling for a careful and calibrated measurement of the circumference of all these factors to
determine compliance with the clear and present danger test, the Court should not be misinterpreted as
devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for
they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump
the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this
failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no
option but to uphold the exercise of free speech and free press. There is no showing that the feared violation
of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press
statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior
restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the
press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is
sufficient that the press statements were made by respondents while in the exercise of their official functions.
Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its
statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the
government in an official capacity is covered by the rule on prior restraint. The concept of an "act" does not
limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an
act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint.
The press statements at bar are acts that should be struck down as they constitute impermissible forms of
prior restraints on the right to free speech and press.

There is enough evidence of chilling effect of the complained acts on record. The warnings given to media
came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and
broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the
awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP
inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner
Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines
on the part of some media practitioners is too deafening to be the subject of misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care
and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery
constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues
revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and
shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally
protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for
freedom is preferred than a blow too late.

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued,
nullifying the official statements made by respondents on June 8, and 11, 2005 warning the media on airing
the alleged wiretapped conversation between the President and other personalities, for constituting
unconstitutional prior restraint on the exercise of freedom of speech and of the press
SO ORDERED.
A.M. No. CA-05-18-P April 12, 2005

ZALDY NUEZ, Complainant,

vs.
ELVIRA CRUZ-APAO, respondent.

DECISION

PER CURIAM:

What brings our judicial system into disrepute are often the actuations of a few erring court personnel
peddling influence to party-litigants, creating the impression that decisions can be bought and sold, ultimately
resulting in the disillusionment of the public. This Court has never wavered in its vigilance in eradicating the so-
called "bad eggs" in the judiciary. And whenever warranted by the gravity of the offense, the supreme penalty
of dismissal in an administrative case is meted to erring personnel.1

The above pronouncement of this Court in the case of Mendoza vs. Tiongson2 is applicable to the case at bar.

This is an administrative case for Dishonesty and Grave Misconduct3 against Elvira Cruz-Apao (Respondent),
Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15th) Division, Court of Appeals
(CA). The complaint arose out of respondent’s solicitation of One Million Pesos (P1,000,000.00) from Zaldy
Nuez (Complainant) in exchange for a speedy and favorable decision of the latter’s pending case in the CA,4
more particularly, CA-G.R. SP No. 73460 entitled "PAGCOR vs. Zaldy Nuez."5 Complainant initially lodged a
complaint with the Action Center of the Television program Imbestigador of GMA Network,6 the crew of which
had accompanied him to the Presidential Anti-Organized Crime Commission–Special Projects Group (PAOCC-
SPG) in Malacañang where he filed a complaint for extortion7 against respondent. This led to the conduct of an
entrapment operation by elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28
September 2004 at the Jollibee Restaurant, 2nd Floor, Times Plaza Bldg., corner Taft and United Nations
Avenue, Manila,8 the place where the supposed hand-over of the money was going to take place.

Respondent’s apprehension by agents of the PAOCTF in the course of the entrapment operation prompted
then CA Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue Office Order No. 297-04-
CG9 (Order) which created an ad-hoc investigating committee (Committee).10 The Committee was specifically
tasked among others to conduct a thorough and exhaustive investigation of respondent’s case and to
recommend the proper administrative sanctions against her as the evidence may warrant.11

In accordance with the mandate of the Order, the Committee conducted an investigation of the case and
issued a Resolution12 dated 18 October 2004 where it concluded that a prima facie case of Dishonesty and
Serious Misconduct against respondent existed. The Committee thus recommended respondent’s preventive
suspension for ninety (90) days pending formal investigation of the charges against her.13 On 28 January 2005,
the Committee submitted a Report14 to the new CA Presiding Justice Romeo A. Brawner with its
recommendation that respondent be dismissed from service.

Based on the hearings conducted and the evidence received by the Committee, the antecedent facts are as
follows:
Complainant’s case referred to above had been pending with the CA for more than two years.15 Complainant
filed an illegal dismissal case against PAGCOR before the Civil Service Commission (CSC). The CSC ordered
complainant’s reinstatement but a writ of preliminary injunction and a temporary restraining order was issued
by the CA in favor of PAGCOR, thus complainant was not reinstated to his former job pending adjudication of
the case.16 Desiring an expeditious decision of his case, complainant sought the assistance of respondent
sometime in July 2004 after learning of the latter’s employment with the CA from her sister, Magdalena David.
During their first telephone conversation17 and thereafter through a series of messages they exchanged via
SMS,18 complainant informed respondent of the particulars of his pending case. Allegedly, complainant
thought that respondent would be able to advise him on how to achieve an early resolution of his case.

However, a week after their first telephone conversation, respondent allegedly told complainant that a
favorable and speedy decision of his case was attainable but the person who was to draft the decision was in
return asking for One Million Pesos (P1,000,000.00).19

Complainant expostulated that he did not have that kind of money since he had been jobless for a long time,
to which respondent replied, "Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na."20
Complainant then tried to ask for a reduction of the amount but respondent held firm asserting that the price
had been set, not by her but by the person who was going to make the decision.21 Respondent even
admonished complainant with the words "Wala tayo sa palengke iho!"22 when the latter bargained for a lower
amount.23

Complainant then asked for time to determine whether or not to pay the money in exchange for the decision.
Instead, in August of 2004, he sought the assistance of Imbestigador.24 The crew of the TV program
accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for extortion.25 Thereafter,
he communicated with respondent again to verify if the latter was still asking for the money26 and to set up a
meeting with her.27 Upon learning that respondent’s offer of a favorable decision in exchange for One Million
Pesos (P1,000,000.00) was still standing, the plan for the entrapment operation was formulated by
Imbestigador in cooperation with the PAOCC.

On 24 September 2004, complainant and respondent met for the first time in person at the 2nd Floor of
Jollibee, Times Plaza Bldg.,28 the place where the entrapment operation was later conducted. Patricia Siringan
(Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-in-law.29 During the
meeting, complainant clarified from respondent that if he gave the amount of One Million Pesos
(P1,000,000.00), he would get a favorable decision. This was confirmed by the latter together with the
assurance that it would take about a month for the decision to come out.30 Respondent also explained that
the amount of One Million Pesos (P1,000,000.00) guaranteed a favorable decision only in the CA but did not
extend to the Supreme Court should the case be appealed later.31

When respondent was asked where the money will go, she claimed that it will go to a male researcher whose
name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5th) Division where
complainant case was pending.32 She also claimed that she will not get any part of the money unless the
researcher decides to give her some.33

Complainant tried once again to bargain for a lower amount during the meeting but respondent asserted that
the amount was fixed. She even explained that this was their second transaction and the reason why the
amount was closed at One Million Pesos (P1,000,000.00) was because on a previous occasion, only Eight
Hundred Thousand Pesos (P800,000.00) was paid by the client despite the fact that the amount had been
pegged at One Million Three Hundred Thousand Pesos (P1,300,000.00).34 Complainant then proposed that he
pay a down payment of Seven Hundred Thousand Pesos (P700,000.00) while the balance of Three Hundred
Thousand Pesos (P300,000.00) will be paid once the decision had been released.35 However, respondent
refused to entertain the offer, she and the researcher having learned their lesson from their previous
experience for as then, the client no longer paid the balance of Five Hundred Thousand Pesos (P500,000.00)
after the decision had come out.36

Complainant brought along copies of the documents pertinent to his case during the first meeting. After
reading through them, respondent allegedly uttered, "Ah, panalo ka."37 The parties set the next meeting date
at lunchtime on 28 September 2004 and it was understood that the money would be handed over by
complainant to respondent then.38

On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang (Maclang) as team
leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and PO2 Edgar delos
Reyes39 arrived at around 11:30 in the morning at Jollibee.40 Nuez and Siringan arrived at past noon and
seated themselves at the table beside the one occupied by the two (2) agents, Banay and Villena. Complainant
had with him an unsealed long brown envelope containing ten (10) bundles of marked money and paper
money which was to be given to respondent.41 The envelope did not actually contain the One Million Pesos
(P1,000,000.00) demanded by respondent, but instead contained paper money in denominations of One
Hundred Pesos (P100.00), Five Hundred Pesos (P500.00) and One Thousand Pesos (P1,000.00), as well as
newspaper cut-outs.42 There were also ten (10) authentic One Hundred Peso (P100.00) bills which had been
previously dusted with ultra-violet powder by the PAOCTF.43 The three other PAOCTF agents were seated a
few tables away44 and there were also three (3) crew members from Imbestigador at another table operating
a mini DV camera that was secretly recording the whole transaction.45

Respondent arrived at around 1:00 p.m.46 She appeared very nervous and suspicious during the meeting.47
Ironically, she repeatedly said that complainant might entrap her, precisely like those that were shown on
Imbestigador.48 She thus refused to receive the money then and there. What she proposed was for
complainant and Siringan to travel with her in a taxi and drop her off at the CA where she would receive the
money.49

More irony ensued. Respondent actually said that she felt there were policemen around and she was afraid
that once she took hold of the envelope complainant proffered, she would suddenly be arrested and
handcuffed.50 At one point, she even said, "Ayan o, tapos na silang kumain, bakit hindi pa sila umaalis?,"51
referring to Banay and Villena at the next table. To allay respondent’s suspicion, the two agents stood up after
a few minutes and went near the staircase where they could still see what was going on.52

Complainant, respondent and Siringan negotiated for almost one hour.53 Complainant and Siringan bargained
for a lower price but respondent refused to accede. When respondent finally touched the unsealed envelope
to look at the money inside, the PAOCTF agents converged on her and invited her to the Western Police District
(WPD) Headquarters at United Nations Avenue for questioning.54 Respondent became hysterical as a
commotion ensued inside the restaurant.55
On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent why she went to the restaurant.
The latter replied that she went there to get the One Million Pesos (P1,000,000.00).56

Respondent was brought to the PNP Crime Laboratory at the WPD where she was tested and found positive for
ultra-violet powder that was previously dusted on the money.57 She was later detained at the WPD
Headquarters.

At seven o’clock in the evening of 28 September 2004, respondent called Atty. Lilia Mercedes Encarnacion
Gepty (Atty. Gepty), her immediate superior in the CA at the latter’s house.58 She tearfully confessed to Atty.
Gepty that "she asked for money for a case and was entrapped by police officers and the media."59 Enraged at
the news, Atty. Gepty asked why she had done such a thing to which respondent replied, "Wala lang ma’am,
sinubukan ko lang baka makalusot."60 Respondent claimed that she was ashamed of what she did and
repented the same. She also asked for Atty. Gepty’s forgiveness and help. The latter instead reminded
respondent of the instances when she and her co-employees at the CA were exhorted during office meetings
never to commit such offenses.61

Atty. Gepty rendered a verbal report62 of her conversation with their division’s chairman, Justice Martin S.
Villarama. She reduced the report into writing and submitted the same to then PJ Cancio Garcia on 29
September 2004.63 She also later testified as to the contents of her report to the Committee.

During the hearing of this case, respondent maintained that what happened was a case of instigation and not
an entrapment. She asserted that the offer of money in exchange for a favorable decision came not from her
but from complainant. To support her contention, she presented witnesses who testified that it was
complainant who allegedly offered money to anyone who could help him with his pending case. She likewise
claimed that she never touched the money on 28 September 2004, rather it was Capt. Maclang who forcibly
held her hands and pressed it to the envelope containing the money. She thus asked that the administrative
case against her be dismissed.

This Court is not persuaded by respondent’s version. Based on the evidence on record, what happened was a
clear case of entrapment, and not instigation as respondent would like to claim.

In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the law-breakers in
the execution of their criminal plan. On the other hand, in instigation, the instigator practically induces the
would-be defendant into the commission of the offense, and he himself becomes a co-principal.64

In this case, complainant and the law enforcers resorted to entrapment precisely because respondent
demanded the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable
decision of the latter’s pending case. Complainant’s narration of the incidents which led to the entrapment
operation are more in accord with the circumstances that actually transpired and are more credible than
respondent’s version.

Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly
presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) in exchange for a
favorable decision of the former’s pending case with the CA. The text messages were properly admitted by the
Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence65
which provides:
"Ephemeral electronic communication" refers to telephone conversations, text messages . . . and other
electronic forms of communication the evidence of which is not recorded or retained."

Under Section 2, Rule 11 of the Rules on Electronic Evidence, "Ephemeral electronic communications shall be
proven by the testimony of a person who was a party to the same or who has personal knowledge
thereof . . . ." In this case, complainant who was the recipient of said messages and therefore had personal
knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone
number reflected in complainant’s cellphone from which the messages originated was hers.66 Moreover, any
doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she
and her counsel signed and attested to the veracity of the text messages between her and complainant.67 It is
also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly
applied.68 We have no doubt as to the probative value of the text messages as evidence in determining the
guilt or lack thereof of respondent in this case.

Complainant’s testimony as to the discussion between him and respondent on the latter’s demand for One
Million Pesos (P1,000,000.00) was corroborated by the testimony of a disinterested witness, Siringan, the
reporter of Imbestigador who was present when the parties met in person. Siringan was privy to the parties’
actual conversation since she accompanied complainant on both meetings held on 24 and 28 of September
2004 at Jollibee.

Respondent’s evidence was comprised by the testimony of her daughter and sister as well as an acquaintance
who merely testified on how respondent and complainant first met. Respondent’s own testimony consisted of
bare denials and self-serving claims that she did not remember either the statements she herself made or the
contents of the messages she sent. Respondent had a very selective memory made apparent when
clarificatory questions were propounded by the Committee.

When she was asked if she had sent the text messages contained in complainant’s cellphone and which
reflected her cellphone number, respondent admitted those that were not incriminating but claimed she did
not remember those that clearly showed she was transacting with complainant. Thus, during the 17
November 2004 hearing, where respondent was questioned by Justice Salazar-Fernando, the following
transpired:

Q: After reading those text messages, do you remember having made those text messages?

(Respondent)

A: Only some of these, your honors.

Justice Salazar-Fernando: Which one?

A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po, your Honors.

Q: What else?

A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya sa kanya si Len David.
Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at 1309 which was around 1:09 in
the afternoon and you said "di me pwede punta na lang kayo dito sa office Thursday 4:45 p.m. Room 107
Centennial Building.

A: Yes, your Honors.

Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon you again texted Zaldy
Nuez and you said "Sige bukas nang tanghali sa Times Plaza, Taft Avenue, corner U.N. Avenue. Magdala ka ng
I.D. para makilala kita o isama mo si Len David.

A: Opo, your Honors.

Q: How about on September 23 at 5:05 in the afternoon when you said "Di pwede kelan mo gusto fixed
price na iyon."

A: I don’t remember that, your Honors.

Q: Again on September 23 at 5:14 p.m. you said "Alam mo di ko iyon price and nagbigay noon yung gagawa.
Wala ako doon." You don’t also remember this?

A: Yes, your Honors.

Q: September 27 at 1:42 p.m. "Oo naman ayusin nyo yung hindi halatang pera". You also don’t remember
that?

A: Yes Your Honors.

Q: September 27 at 1:30 in the afternoon, "Di na pwede sabi sa akin. Pinakaiusapan ko na nga ulit iyon."
You don’t remember that?

A: No, your Honors.69

Respondent would like this Court to believe that she never had any intention of committing a crime, that the
offer of a million pesos for a favorable decision came from complainant and that it was complainant and the
law enforcers who instigated the whole incident.

Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting her, not
to get the One Million Pesos (P1,000,000.00) as pre-arranged.

This claim of respondent is preposterous to say the least. Had the offer of a million pesos really come from
complainant and had she really intended to stop the latter from corrupting her, she could have simply refused
to answer the latter’s messages and calls. This she did not do. She answered those calls and messages though
she later claimed she did not remember having sent the same messages to complainant. She could also have
reported the matter to the CA Presiding Justice, an action which respondent admitted during the hearing was
the proper thing to do under the circumstances.70 But this course of action she did not resort to either,
allegedly because she never expected things to end this way.71

While claiming that she was not interested in complainant’s offer of a million pesos, she met with him not only
once but twice, ostensibly, to tell the latter to stop pestering her. If respondent felt that telling complainant to
stop pestering her would be more effective if she did it in person, the same would have been accomplished
with a single meeting. There was no reason for her to meet with complainant again on 28 September 2004
unless there was really an understanding between them that the One Million Pesos (P1,000,000.00) will be
handed over to her then. Respondent even claimed that she became afraid of complainant when she learned
that the latter had been dismissed by PAGCOR for using illegal drugs.72 This notwithstanding, she still met with
him on 28 September 2004.

Anent complainant’s narration of respondent’s refusal to reduce the amount of One Million Pesos
(P1,000.000.00) based on the lesson learned from a previous transaction, while admitting that she actually
said the same, respondent wants this Court to believe that she said it merely to have something to talk
about.73 If indeed, respondent had no intention of committing any wrongdoing, it escapes the Court why she
had to make up stories merely to test if complainant could make good on his alleged boast that he could come
up with a million pesos. It is not in accord with ordinary human experience for an honest government
employee to make up stories that would make party-litigants believe that court decisions may be bought and
sold. Time and again this Court has declared, thus:

"Everyone in the judiciary bears a heavy burden of responsibility for the proper discharge of his duty and it
behooves everyone to steer clear of any situations in which the slightest suspicion might be cast on his
conduct. Any misbehavior on his part, whether true or only perceived, is likely to reflect adversely on the
administration of justice."74

Respondent having worked for the government for twenty four (24) years, nineteen (19) of which have been in
the CA,75 should have known very well that court employees are held to the strictest standards of honesty and
integrity. Their conduct should at all times be above suspicion. As held by this Court in a number of cases,
"The conduct or behavior of all officials of an agency involved in the administration of justice, from the
Presiding Judge to the most junior clerk, should be circumscribed with the heavy burden of responsibility."76
Their conduct must, at all times be characterized by among others, strict propriety and decorum in order to
earn and maintain the respect of the public for the judiciary.77

Respondent’s actuations from the time she started communicating with complainant in July 2004 until the
entrapment operation on 28 September 2004 show a lack of the moral fiber demanded from court employees.
Respondent’s avowals of innocence notwithstanding, the evidence clearly show that she solicited the amount
of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision. The testimony of
Atty. Gepty, the recipient of respondent’s confession immediately after the entrapment operation,
unmistakably supports the finding that respondent did voluntarily engage herself in the activity she is being
accused of.

Respondent’s solicitation of money from complainant in exchange for a favorable decision violates Canon I of
the Code of Conduct for Court Personnel which took effect on 1 June 2004 pursuant to A.M. No. 03-06-13-SC.
Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel expressly provide:
"SECTION 1. Court personnel shall not use their official position to secure unwarranted benefits, privileges or
exemption for themselves or for others."

"SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit
understanding that such gift, favor or benefit shall influence their official actions." (Underscoring supplied)

It is noteworthy that the penultimate paragraph of the Code of Conduct for Court Personnel specifically
provides:

INCORPORATION OF OTHER RULES

"SECTION 1. All provisions of the law, Civil Service rules, and issuances of the Supreme Court governing the
conduct of public officers and employees applicable to the judiciary are deemed incorporated into this Code."

By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent committed an act
of impropriety which immeasurably affects the honor and dignity of the judiciary and the people’s confidence
in it.

In the recent case of Aspiras vs. Abalos,78 complainant charged respondent, an employee of the Records
Section, Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him into giving her
money in the total amount of Fifty Two Thousand Pesos (P52,000.00) in exchange for his acquittal in a murder
case on appeal before the Supreme Court. It turned out that respondent’s representation was false because
complainant was subsequently convicted of murder and sentenced to suffer the penalty of reclusion perpetua
by the Supreme Court.79

The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct and ordered her dismissal
from the service. This Court aptly held thus:

"In Mirano vs. Saavedra,80 this Court emphatically declared that a public servant must exhibit at all times the
highest sense of honesty and integrity. The administration of justice is a sacred task, and by the very nature of
their duties and responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate
the principle that public office is a public trust, solemnly enshrined in the Constitution."81

Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Shari’a Circuit Court, Bengo,
Tawi-Tawi,82 this Court stated:

"No position demands greater moral righteousness and uprightness from the occupant than the judicial office.
Those connected with the dispensation of justice bear a heavy burden of responsibility. Court employees in
particular, must be individuals of competence, honesty and probity charged as they are with safeguarding the
integrity of the court . . . . The High Court has consistently held that persons involved in the administration of
justice ought to live up to the strictest standards of honesty and integrity in the public service. He should
refrain from financial dealings which would interfere with the efficient performance of his duties.83 The
conduct required of court personnel must always be beyond reproach."84

The following pronouncement of this Court in the case of Yrastorza, Sr. vs. Latiza, Court Aide, RTC Branch 14
Cebu City85 is also worth remembering:
"Court employees bear the burden of observing exacting standards of ethics and morality. This is the price one
pays for the honor of working in the judiciary. Those who are part of the machinery dispensing justice from the
lowliest clerk to the presiding judge must conduct themselves with utmost decorum and propriety to maintain
the public’s faith and respect for the judiciary. Improper behavior exhibits not only a paucity of professionalism
at the workplace but also a great disrespect to the court itself. Such demeanor is a failure of circumspection
demanded of every public official and employee."86

In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the
Committee in their Report87 recommended that respondent be dismissed from government service for GRAVE
MISCONDUCT and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court Personnel.88

Finding the Committee’s recommendation to be supported by more than substantial evidence and in accord
with the applicable laws and jurisprudence, the recommendation is well taken.

WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE MISCONDUCT and
violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT PERSONNEL and is accordingly
DISMISSED from government service, with prejudice to re-employment in any branch, instrumentality or
agency of the government, including government-owned and controlled corporations. Her retirement and all
benefits except accrued leave credits are hereby FORFEITED.

SO ORDERED.
A.M. No. MTJ-96-1110 June 25, 2001

CONG. MANUEL N. MAMBA, M. D. ATTY. FRANCISCO N. MAMBA, JR., HON. GUILLERMO SUMIGAD, HON.
CALIXTO GENOVEZA, HON. MARTIN SORIANO, HON. LOURDES FAUSTO, HON. LORENZO FERMIN, HON.
ADORACION RAQUINIO, HON. LEONIDES FAUSTO, HON. DIOGENES BALIGOD, HON. LORETO MABBORANG,
HON. PETER SY, HON. NICCOLO MAMBA, LORETO MAMBA, JUAN TAGUBA, DOMINGO CAMARAT, SEVERINO
BUCAYU, CASIANO CHAVENTE, ILLUMINADO BALIGOD, FELICIANO SERRANO, TEOFILO URMA, REMIGIO DE
LA CRUZ, ABELARDO BAUIT, MARIANO MIRANDA, JR., ROMULO SERAFICA, CARLOS MANANGUIT, ERNESTO
FERMIN, ROGELIO FERNANDEZ, ERNESTO CENABRE, TRINIDAD BALUNSAT, MIGUEL PASON, GIL BALORAN,
DOMINGO CALLUENG, BERNARDO BENITO, JUAN TURINGAN, MARCELINO CORPUZ, IGNACIO PASCUA, JR.,
LEONIDES FAUSTO, TEODORICO PASTOR, DOMINADOR CORSINO, GENEROSO AGLAUA, ZACARIAS MAGGAY,
SIMEON BENZON, PATRICIO TAGUIAM, LUCAS TAGUINOD, MA. GLORIA G. BALIGOD, LAURO N. FAUSTO,
EDGAR AGGABAO, RODOLFO CARDENAS, TERESITA ESPINOSA, PACIFICO C. BINULUAN, ROGELIO SORIANO,
ARTURO MAMBA, DR. EXSUPERIO YUAGA, VIVIAN DE GUZMAN, EX-CONG. FRANCISCO K. MAMBA, CRISTINA
MAMBA, EDWIN LIU, PABLO DANGA, ALICE LOA, VICENTE TOLENTINO, NUMERIANO MACAPULAY, ROLLY
SEDANO, complainants,
vs.
JUDGE DOMINADOR L. GARCIA, MTC, TUAO, CAGAYAN, respondent.

PER CURIAM:

This is a "resolution," which is more accurately a manifesto or a petition of concerned citizens of Tuao,
Cagayan, denouncing certain acts of Judge Dominador L. Garcia, Municipal Trial Court, Tuao, Cagayan, in
connection with his handling of Criminal Case No. 399, entitled "People vs. Renato Bulatao." The complainants
are the then Representative of the Third District of Cagayan, the mayor and vice-mayor, ten (10) members of
the Sangguniang Bayan, thirty-two (32) barrio captains, ten (10) LGU department heads of Tuao, Cagayan, and
eight (8) heads of non-governmental organizations or NGOs in the municipality of Tuao.

The "resolution," dated November 4, 1996, was presented to this Court. It was adopted at an assembly led by
Rep. Manuel N. Mamba which picketed the municipal trial court on that day. 1 The "resolution" was treated as
an administrative complaint and respondent Judge Dominador L. Garcia was required to answer. The matter
was referred to Executive Judge Orlando D. Beltran, Jr. of the Regional Trial Court of Tuao, Cagayan, for
investigation, report, and recommendation. 2

Thereafter, an investigation was held during which the affidavits and sworn statements of NBI Special
Investigator Ablezer Rivera, the joint affidavit of NBI agents, Raul A. Ancheta and Paul D. Rivera, the sworn
statement of the accused in Criminal Case No. 699, Renato Bulatao, and the testimonies of Abner P. Cardenas,
clerk of court, MTC, Tuao, Cagayan and Tomas Latauan, Jr., interpreter of the same court, were presented. The
gist of the evidence for the complainants is as follows:

On August 23, 1996, a complaint for violation of Presidential Decree No. 1866 (illegal possession of firearms)
was filed against a certain Renato Bulatao by the Cagayan Provincial Police Command before the sala of
respondent Judge Dominador L. Garcia of the Municipal Trial Court, Tuao, Cagayan. 3 Respondent set the
preliminary investigation on September 4, 1996, but the same was subsequently postponed and reset to
October 23, 1996 as respondent was not present, although the complaining officer, P/Sr. Inspector Danny F.
Salvador, appeared in court. On October 23, 1996, the preliminary investigation was again reset to October 30,
1996. On October 29, 1996, the accused, Renato Bulatao, complained to the NBI that at the scheduled
preliminary investigation on September 4, 1996, P/Sr. Inspector Salvador demanded P30,000.00 from him in
consideration of the withdrawal of the criminal case against him. According to Bulatao, the demand was
reiterated by Salvador and respondent judge on October 23, 1996. As Bulatao told them that he could not
afford it, the amount was reduced to P6,000.00.

Based on Bulatao's report, the NBI set out to entrap Salvador and respondent judge. The NBI gave Bulatao 12
pieces of P500.00 marked bills amounting to P6,000.00, which the latter would give to Salvador and
respondent the next day. 4

Accordingly, at about 7 o'clock in the morning of the following day, October 30, Bulatao met the NBI operatives
in the house of Francisco Mamba, Sr., former representative of the 3rd District of Cagayan, where the
entrapment was planned. Bulatao was given a tape recorder to record his conversation with whoever will
receive the money. At 9 a.m., Bulatao went to the Municipal Trial Court and waited for his case to be called. At
10:30 a.m., respondent went out of his chambers and talked to SPO2 Jonathan Santos and SPO4 Carlos Poli,
representatives of P/Sr. Inspector Salvador in the preliminary investigation. Respondent then called Bulatao
and led him and the two police officers to the office of the MTC court personnel. Inside, respondent asked
Bulatao if he had the money with him. When he answered in the affirmative, respondent took them to his
chambers and left them there as he proceeded to his sala. After handing the money to the police officers,
Bulatao went out of respondent's chambers. Upon his signal, the NBI operatives waiting outside respondent's
court then rushed to the judge's chambers and arrested the two police officers after recovering 11 pieces of
P500.00 marked bills in their possession. 5
After the matter was referred by this Court to Executive Judge Orlando Beltran for investigation, the latter
scheduled several hearings for the reception of evidence for the respondent. The records show that hearings
were set on different dates (December 10, 1997, January 30, 1998, February 10, 1998, March 3, 1998, March
10, 1998, September 10, 1998, October 9, 1998, November 11, 1998, January 5, 1999, February 9, 1999, March
4, 1999, and April 5, 1999), but respondent did not appear despite due notice. Accordingly, he was deemed to
have waived the right to present evidence and the case was submitted for decision. Hence only his counter-
affidavit was considered, in which respondent claimed that it was Bulatao who asked permission to talk to the
two police officers. He denied that he took the three to his chambers. 6

On the basis of these facts, the Investigating Judge made the following recommendation:

"The foregoing facts indisputably show that the respondent Judge allowed the use of his chambers by the two
(2) police officers SPO II Jonathan Santos and SPO IV Carlos Poli and Renato Bulatao, the accused in the
criminal case for illegal possession of firearms, so that they could talk about the "settlement" of Bulatao's case
which was then pending preliminary investigation by the respondent Judge. Although the two (2) witnesses,
Abner Cardenas and Tomas Latauan, Jr., claimed that they did not hear the subject of the conversation
between Bulatao, on one hand, and the two (2) policemen and the respondent Judge Dominador L. Garcia, on
the other, before the three first-named persons went inside the chambers of the respondent Judge, it is not
difficult to conclude that they must have talked about the criminal case of Bulatao and its "settlement." For if
the subject-matter of their conversation were other than said "settlement" there appears no reason or
purpose to allow the policemen and the accused to go inside the judge's chambers and there to continue their
conversation. Simply stated, the respondent judge allowed the two (2) policemen and the accused Renato
Bulatao to use his chambers so that they could consummate the arrangements for the dismissal of the case,
particularly the payment of the sum of money being demanded as consideration for such dismissal.

"In this connection, the undersigned Investigating Judge cannot help but refer to the taped conversation
between the two (2) policemen and Renato Bulatao inside the chamber of the respondent Judge. A portion of
the translated dialogue between Poli and Bulatao, which was in Ilocano, tends to show that the P6,000.00 pay-
off handed by Bulatao to the policemen was not intended for the respondent Judge but solely for the
policemen and their superior, P/Sr. Inspector Salvador. However, it is not easy to disregard the implication
obvious from the said conversation that the respondent Judge was privy to the entire transaction. SPO IV Poli
pointedly told Bulatao "to take care of the Judge" which implies that the Judge knew of the pay-off being made
and was willing to abide by the "deal" provided he would be "taken care of" by Bulatao.

"Such acts of the respondent Judge are improper, to say the least. He, therefore, violated the duty of every
Judge to uphold the integrity of the judiciary and to avoid impropriety and the appearance of impropriety in all
activities. (Mortel vs. Leido, Jr. 44 SCAD 567). It cannot be over-emphasized that a judge's official conduct
should be free from the appearance of impropriety, and his personal behavior, not only upon the bench and in
the performance of official duties but also in his every day life, should be beyond reproach. (Marcos, Sr. vs.
Arcangel, 72 SCAD 1). Canon 2 of the Code of Judicial Conduct enjoins judges to avoid not just impropriety in
their conduct but even the mere appearance of impropriety. This is true not only in the performance of their
official duties but in all their activities, including their private life. They must conduct themselves in such a
manner that they give no ground for reproach. (Pedro San Juan vs. Judge Lore V. Bagalsera, RTC, BR. 23, Naga
City, A. M. No. RTJ-97-1395, December 22, 1997). In this case, the acts of the respondent judge were clearly
improper as he facilitated, if not participated in, the obviously unauthorized/illegal transaction between the
two (2) police officers and the accused Renato Bulatao for the settlement/dismissal of the latter's criminal
case, in consideration of a sum of money, particularly since the offense charged against Bulatao is a grievous
one and that it is one which is not allowed by law to be compromised.

"In view of all the foregoing, the undersigned Investigating Judge respectfully recommends that the
respondent Judge Dominador L. Garcia be found guilty of improper conduct and be punished accordingly." 7

The Investigating Judge's reliance on the tape-recorded conversation between Bulatao and the two police
officers is erroneous. The recording of private conversations without the consent of the parties contravenes
the provisions of Rep. Act. No. 4200, otherwise known as the Anti-Wire Tapping Law, and renders the same
inadmissible in evidence in any proceeding. 8 The law covers even those recorded by persons privy to the
private communications, as in this case. 9 Thus, the contents of the tape recorder cannot be relied upon to
determine the culpability of respondent judge.

In all other respects, however, the findings of the Investigating Judge are in accordance with the evidence. We
hold, however, that respondent judge is guilty not just of improper conduct but of serious misconduct. Serious
misconduct is such conduct which affects a public officer's performance of his duties as such officer and not
only that which affects his character as a private individual. For serious misconduct to warrant a dismissal from
the service, there must be reliable evidence showing that the judicial acts complained of were corrupt or
inspired by an intention to violate the law. It must (1) be serious, important, weighty, momentary, and not
trifling; (2) imply wrongful intention and not mere error of judgment; and (3) have a direct relation to and be
connected with the performance of his official duties. 10

In the case at bar, it is clear that the crime of bribery was committed. Although the evidence may not be
sufficient to support a conviction in a criminal case, it is adequate for the purpose of these proceedings. The
standards of integrity required of members of the Bench are not satisfied by conduct which merely allows one
to escape the penalties of the criminal law. 11 In an administrative proceeding, such as this case, only
substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate
to support a conclusion, is required. 12

To constitute bribery, the following must be shown: (1) the offender is a public officer within the scope of Art.
203; (2) the offender accepts an offer or a promise or receives a gift or present by himself or through another;
(3) such offer or promise is accepted, or gift received by the public officer, (a) with a view to committing some
crime; (b) in consideration of the execution of an act which does not constitute a crime, but which is unjust; or
(c) to refrain from doing something which it is his official duty to do; and (4) the act which he agrees to
perform is connected with the performance of his official duties. 13 From the records, it is evident that P/Sr.
Inspector Salvador, a public officer, solicited money from Bulatao in consideration of the withdrawal of the case
against the latter. The former categorically told the latter that he would withdraw the criminal case against
Bulatao if Bulatao gives him P30,000.00, which was later lowered to P6,000.00. The fact that two of his men
came for the preliminary investigation and, without hesitation, followed respondent judge to his chambers
after hearing that Bulatao had the money, bears out Bulatao's allegations. Although these circumstances do
not show conclusively that respondent judge was privy to the crime of bribery, there is substantial evidence
showing that he was at least an accomplice to the crime who cooperated in the execution of the offense by
previous or simultaneous acts. 14 The following circumstances, as corroborated by the report of the NBI and
the testimonies of two employees of the MTC, who were disinterested witnesses, show that respondent judge
knowingly and voluntarily cooperated with P/Sr. Inspector Salvador in consummating the crime:
(1) On the day of the entrapment, respondent judge asked Bulatao if he had the money, and when he
received an affirmative answer, he took Bulatao and the two police officers to his chambers told the police
officers to receive whatever Bulatao would give them, 15 and then left; and

(2) When Bulatao left respondent's chambers and gave the signal to the NBI operatives waiting outside,
the marked bills were found by the agents in the possession of SPO2 Jonathan Santos, as the latter was leaving
the chambers of respondent judge with SPO4 Carlos Poli. As the Investigating Judge observed, respondent
willingly allowed his chambers to be used for the consummation of the illegal transaction. The actions of
respondent implies a wrongful intention to commit an unlawful act while in the performance of his official
duties.

Canon 2 of the Code of Judicial Conduct enjoins judges to avoid not only impropriety but even the appearance
of impropriety in all their conduct. This includes not taking an undue interest in the settlement of criminal
cases pending before them as this may compromise the integrity and impartiality of their office. 16 As the
visible representation of the law and of justice, their conduct must be above reproach and suspicion. 17 By
acting as an accomplice to P/Sr. Inspector Salvador, respondent judge violated not only the law but also the
Code of Judicial Conduct.

Nor does the fact that respondent committed misconduct during a preliminary investigation, which is
nonjudicial in character, exempt him from the disciplinary power of this Court as the conduct of a preliminary
investigation is only an addition to his judicial functions. 18

In Cabrera vs. Pajares, 19 where the payment of the money to respondent judge in his chambers was
witnessed by an NBI agent, this Court ordered his dismissal from the service. Likewise, in Court Administrator
vs. Hermoso, 20 where the judge received money from a party to a case pending before his sala and was
entrapped by an NBI agent, this Court ordered his dismissal. In addition, the erring judge is liable to the
forfeiture of his leave credits and retirement benefits and his dismissal shall be with prejudice to
reemployment in any branch of the government or any of its agencies or instrumentalities, including
government-owned and controlled corporations, as provided by Section 9, Rule 14 of the Omnibus Rules
Implementing Book V of Executive Order No. 292 (Administrative Code of 1987) and our current rulings.21

Respondent judge was previously convicted in two administrative cases filed before this Court. In A.M. No.
MTJ-91-616, entitled "Clodualdo Escobar vs. Garcia," the Court, in a resolution dated September 1, 1992,
found respondent guilty of palpable ignorance of Rule 114, section 8 resulting in the denial of due process to
the prosecution in a criminal case. Respondent was fined an amount equivalent to 15 days salary with warning
that a repetition of the same would be dealt with more severely. In another case, A.M. No. MTJ-95-1049,
entitled "Eloisa Bernardo v. Garcia," the Court, in a resolution dated June 28, 1995, found respondent guilty of
deliberately delaying his decision in a civil case and falsifying certificates of service. He was reprimanded and
ordered to pay a fine of P5,000.00 with warning that a repetition of the same or similar acts will be dealt with
more severely.

WHEREFORE, the Court finds respondent Judge Dominador L. Garcia guilty of serious misconduct and
accordingly orders his DISMISSAL from the service and the forfeiture of his leave credits and retirement
benefits, with prejudice to reemployment in any branch of the government or any of its agencies or
instrumentalities, including government-owned and controlled corporations.
SO ORDERED.

G.R. No. 107383 February 20, 1996

CECILIA ZULUETA, petitioner,

vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial
Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her from
private respondent's clinic without the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner
entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and
private respondent's secretary, forcibly opened the drawers and cabinet in her husband's clinic and took 157
documents consisting of private correspondence between Dr. Martin and his alleged paramours, greetings
cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and papers were
seized for use in evidence in a case for legal separation and for disqualification from the practice of medicine
which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against
petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered
judgment for private respondent, Dr. Alfredo Martin, declaring him "the capital/exclusive owner of the
properties described in paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return
and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to a immediately return the
properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral damages and
attorney's fees; and to pay the costs of the suit. The writ of preliminary injunction earlier issued was made final
and petitioner Cecilia Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of Appeals
affirmed the decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo
Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and consent. For
that reason, the trial court declared the documents and papers to be properties of private respondent,
ordered petitioner to return them to private respondent and enjoined her from using them in evidence. In
appealing from the decision of the Court of Appeals affirming the trial court's decision, petitioner's only
ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents and papers (marked
as Annexes A-1 to J-7 of respondent's comment in that case) were admissible in evidence and, therefore, their
use by petitioner's attorney, Alfonso Felix did not constitute malpractice or gross misconduct, For this reason it
is contended that the Court of Appeals erred in affirming the decision of the trial court instead of dismissing
private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things,
private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in
evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the injunctive order of the trial
court. In dismissing the complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty.
Felix; Jr. which it found to be "impressed with merit:"2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:

....

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court, there
was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex
"A-1 to J-7." On September 6, 1983, however having appealed the said order to this Court on a petition for
certiorari, this Court issued a restraining order on aforesaid date which order temporarily set aside the order of
the trial court. Hence, during the enforceability of this Court's order, respondent's request for petitioner to
admit the genuineness and authenticity of the subject annexes cannot be looked upon as malpractice. Notably,
petitioner Dr. Martin finally admitted the truth and authenticity of the questioned annexes, At that point in
time, would it have been malpractice for respondent to use petitioner's admission as evidence against him in
the legal separation case pending in the Regional Trial Court of Makati? Respondent submits it is not
malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under oath, Such
verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner
became bound by his admission. For Cecilia to avail herself of her husband's admission and use the same in
her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his
use of the documents and papers for the purpose of securing Dr. Martin's admission as to their genuiness and
authenticity did not constitute a violation of the injunctive order of the trial court. By no means does the
decision in that case establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the documents and
papers, enforcement of the order of the trial court was temporarily restrained by this Court. The TRO issued by
this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial court's order
was dismissed and, therefore, the prohibition against the further use of the documents and papers became
effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction
declaring "the privacy of communication and correspondence [to be] inviolable"3 is no less applicable simply
because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party against whom
the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if
there is a "lawful order [from a] court or when public safety or order requires otherwise, as prescribed by
law."4 Any violation of this provision renders the evidence obtained inadmissible "for any purpose in any
proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets
of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting
marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional
protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged. Neither
husband nor wife may testify for or against the other without the consent of the affected spouse while the
marriage subsists.6 Neither may be examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage, save for specified exceptions.7 But one
thing is freedom of communication; quite another is a compulsion for each one to share what one knows with
the other. And this has nothing to do with the duty of fidelity that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.
G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the
Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices
in Section 1 of the Act, such that its use to overhear a private conversation would constitute unlawful
interception of communications between the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed by the
petitioner.

In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were in the
living room of complainant's residence discussing the terms for the withdrawal of the complaint for direct
assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico. After they had
decided on the proposed conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp.
3-5).

That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise him on
the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on a business
trip. According to the request, appellant went to the office of Laconico where he was briefed about the
problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).

When complainant called up, Laconico requested appellant to secretly listen to the telephone conversation
through a telephone extension so as to hear personally the proposed conditions for the settlement. Appellant
heard complainant enumerate the following conditions for withdrawal of the complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A
breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longer for
the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the case for
Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office;

(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School;

(c) Pl,000.00 to be given to the Don Bosco Faculty club;

(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High
School;

(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel
Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct Assault
Case against Atty. Laconico to be filed later;

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;

(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;

(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions.
Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on where to deliver the
money. (tsn, March 10, 1983, pp. 2-12).

Complainant called up again and instructed Laconico to give the money to his wife at the office of the then
Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal
Investigation Service of the Philippine Constabulary, insisted that complainant himself should receive the
money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant, complainant
was arrested by agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00 for
the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to the complainant
for robbery/extortion which he filed against complainant. Since appellant listened to the telephone
conversation without complainant's consent, complainant charged appellant and Laconico with violation of the
Anti-Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and
Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year
imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the
communication between the complainant and accused Laconico was private in nature and, therefore, covered
by Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge and consent
of the complainant; and that the extension telephone which was used by the petitioner to overhear the
telephone conversation between complainant and Laconico is covered in the term "device' as provided in Rep.
Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following
issues; (a) whether or not the telephone conversation between the complainant and accused Laconico was
private in nature; (b) whether or not an extension telephone is covered by the term "device or arrangement"
under Rep. Act No. 4200; (c) whether or not the petitioner had authority to listen or overhear said telephone
conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in
favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise
described:

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceeding
sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies
thereof, of any communication or spoken word secured either before or after the effective date of this Act in
the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate
the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or
partial, to any other person: Provided, that the use of such record or any copies thereof as evidence in any
civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this
prohibition.

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue
is not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is
whether or not the person called over the telephone and his lawyer listening to the conversation on an
extension line should both face prison sentences simply because the extension was used to enable them to
both listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty.
Laconico was "private" in the sense that the words uttered were made between one person and another as
distinguished from words between a speaker and a public. It is also undisputed that only one of the parties
gave the petitioner the authority to listen to and overhear the caller's message with the use of an extension
telephone line. Obviously, complainant Pintor, a member of the Philippine bar, would not have discussed the
alleged demand for an P8,000.00 consideration in order to have his client withdraw a direct assault charge
against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer was also listening.
We have to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller by
merely using a telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying
the call may be. It would be the word of the caller against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy
loads which telephone cables are made to carry in certain areas, telephone users often encounter what are
called "crossed lines". An unwary citizzen who happens to pick up his telephone and who overhears the details
of a crime might hesitate to inform police authorities if he knows that he could be accused under Rep. Act
4200 of using his own telephone to secretly overhear the private communications of the would be criminals.
Surely the law was never intended for such mischievous results.

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any
other device or arrangement." Is an extension of a telephone unit such a device or arrangement as would
subject the user to imprisonment ranging from six months to six years with the accessory penalty of perpetual
absolute disqualification for a public officer or deportation for an alien? Private secretaries with extension lines
to their bosses' telephones are sometimes asked to use answering or recording devices to record business
conversations between a boss and another businessman. Would transcribing a recorded message for the use
of the boss be a proscribed offense? or for that matter, would a "party line" be a device or arrangement under
the law?

The petitioner contends that telephones or extension telephones are not included in the enumeration of
"commonly known" listening or recording devices, nor do they belong to the same class of enumerated
electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No.
4200) was being considered in the Senate, telephones and extension telephones were already widely used
instruments, probably the most popularly known communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor of the
Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the enumeration
of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or
however otherwise described." The omission was not a mere oversight. Telephone party lines were
intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device"
within the context of the aforementioned law because it is not a part or portion of a complete set of a
telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting of a wire and a
set of telephone receiver not forming part of a main telephone set which can be detached or removed and can
be transferred away from one place to another and to be plugged or attached to a main telephone line to get
the desired communication corning from the other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly
overhearing, intercepting, or recording the communication. There must be either a physical interruption
through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or
record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other
devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire
or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just
happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine
the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as
detached and isolated expressions, but the whole and every part thereof must be considered in fixing the
meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).

In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:

Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be, they
shall not be understood to comprehend things that are distinct and cases that are different from those upon
which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that 'the various
stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may
result from all of them taken jointly.

xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d) should
be then restricted only to those listed in the Inventory and should not be construed as to comprehend all other
obligations of the decedent. The rule that 'particularization followed by a general expression will ordinarily be
restricted to the former' is based on the fact in human experience that usually the minds of parties are
addressed specially to the particularization, and that the generalities, though broad enough to comprehend
other fields if they stood alone, are used in contemplation of that upon which the minds of the parties are
centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco,
Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that
enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is,
instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to
instruments whose installation or presence cannot be presumed by the party or parties being overheard
because, by their very nature, they are not of common usage and their purpose is precisely for tapping,
intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended unit does
not have to be connected by wire to the main telephone but can be moved from place ' to place within a
radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of
the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a
party line or a telephone unit which shares its line with another. As was held in the case of Rathbun v. United
States (355, U.S. 107, 2 L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may cause the bell to ring in more
than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party
may have an extension telephone and may allow another to overhear the conversation. When such takes place
there has been no violation of any privacy of which the parties may complain. Consequently, one element of
605, interception, has not occurred.

In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of
repeating the message he held out his hand-set so that another could hear out of it and that there is no
distinction between that sort of action and permitting an outsider to use an extension telephone for the same
purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in
case of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device
or arrangement", the penal statute must be construed as not including an extension telephone. In the case of
People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:

American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of
individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the
discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin
Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE
1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape punishment
through a technicality but to provide a precise definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737,
quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184).

In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure,
the primary rule is to search for and determine the intent and spirit of the law. A perusal of the Senate
Congressional Records will show that not only did our lawmakers not contemplate the inclusion of an
extension telephone as a prohibited device or arrangement" but of greater importance, they were more
concerned with penalizing the act of recording than the act of merely listening to a telephone conversation.

xxx xxx xxx

Senator Tañada. Another possible objection to that is entrapment which is certainly objectionable. It is made
possible by special amendment which Your Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the amendment than
without it, because with the amendment the evidence of entrapment would only consist of government
testimony as against the testimony of the defendant. With this amendment, they would have the right, and the
government officials and the person in fact would have the right to tape record their conversation.

Senator Tañada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could record and, therefore, the court
would be limited to saying: "Okay, who is more credible, the police officers or the defendant?" In these cases,
as experienced lawyers, we know that the Court go with the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

xxx xxx xxx

Senator Diokno. The point I have in mind is that under these conditions, with an agent outside listening in, he
could falsify the testimony and there is no way of checking it. But if you allow him to record or make a
recording in any form of what is happening, then the chances of falsifying the evidence is not very much.

Senator Tañada. Your Honor, this bill is not intended to prevent the presentation of false testimony. If we could
devise a way by which we could prevent the presentation of false testimony, it would be wonderful. But what
this bill intends to prohibit is the use of tape record and other electronic devices to intercept private
conversations which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as
government authorities or representatives of organized groups from installing devices in order to gather
evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone
users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the
enumerated devices in RA No. 4200 or others of similar nature. We are of the view that an extension
telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16,
1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No.
4200, otherwise known as the Anti-Wiretapping Act.

SO ORDERED.
G.R. No. L-51201 May 29, 1980

IN THE MATTER OF THE PETITION FOR CHANGE OF NAME OF MARIA ESTRELLA VERONICA PRIMITIVA
DUTERTE, ESTRELLA S. ALFON, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.

ABAD SANTOS, J.:ñé+.£ªwph!1

This is a petition filed pursuant to Republic Act No. 5440 to review an Order of the Court of First Instance of
Rizal, Branch XXIII, dated December 29, 1978, which partially denied petitioner's prayer for a change of name.
Only a question of law is involved and there is no controversy over the facts which are well-stated in the
questioned Order as follows: têñ.£îhqwâ£
This is verified petition filed on April 28, 1978 by petitioner Maria Estrella Veronica Primitiva Duterte through
her counsel, Atty. Rosauro Alvarez, praying that her name be changed from Maria Estrella Veronica Primitiva
Duterte to Estrella S. Alfon.

The notice setting the petition for hearing on December 14, 1978 at 8:30 o'clock in the morning was published
in the Times Journal in its issues of July 28, August 5 and 11, 1978 and a copy thereof together with a copy of
the petition was furnished the Office of the Solicitor General (Exhibits C, C-1, C-2 and C-3).

At the hearing of the petition on December 14, 1978, Atty. Rosauro Alvarez appeared for the petitioner and
Fiscal Donato Sor. Suyat, Jr. represented the office of the Solicitor General, Upon motion of counsel for the
petitioner, without objection on the part of Fiscal Suyat, the Deputy Clerk of Court was appointed
commissioner to receive the evidence and to submit the same for resolution of the Court.

From the testimonial and document evidence presented, it appears that petitioner Maria Estrella Veronica
Primitiva Duterte was born on May 15, 1952 at the U.S.T. Hospital (Exhibit A). She was registered at the local
Civil Registrar's Office as Maria Estrella Veronica Primitiva Duterte On June 15, 1952, she was baptized as Maria
Estrella Veronica Primitiva Duterte at the St. Anthony de Padua Church Singalong, Manila (Exhibit B). Her
parents are Filomeno Duterte and Estrella Veronica Primitiva Duterte has been taken cared of by Mr. and Mrs.
Hector Alfon. Petitioner and her uncle, Hector Alfon, have been residing at 728 J.R. Yulo Street corner Ideal
Street, Mandaluyong, Metro Manila for twenty-three (23) years. When petitioner started schooling, she used
the name Estrella S. Alfon. She attended her first grade up to fourth year high school at Stella Maris College
using the name Estrella S. Alfon (Exhibits E, E-1, E-2 and E-3). After graduating from high school she enrolled at
the Arellano University and finished Bachelor of Science in Nursing (Exhibit E-4). Her scholastic records from
elementary to college show that she was registered by the name of Estrella S. Alfon. Petitioner has exercised
her right of suffrage under the same name (Exhibit D). She has not committed any felony or misdemeanor
(Exhibits G, G-1, G-2, G-3 and G-4).

Petitioner has advanced the following reasons for filing the petition:

1. She has been using the name Estrella Alfon since her childhood;

2. She has been enrolled in the grade school and in college using the same name;

3. She has continuously used the name Estrella S. Alfon since her infancy and all her friends and
acquaintances know her by this name;

4. She has exercised her right of suffrage under the same name.

Section 5, Rule 103 of the Rules of Court provides:

Upon satisfactory proof in open court on the date fixed in the order that such order has been published as
directed and that the allegations of the petition are true, the court shall if proper and reasonable cause
appears for changing the name of the petitioner adjudge that such name be changed in accordance with the
prayer of the petition.
The evidence submitted shows that the change of name from Maria Estrella Veronica Primitiva Duterte to
Estrella Alfon is not proper and reasonable with respect to the surname. The fact that petitioner has been
using a different surname and has become known with such surname does not constitute proper and
reasonable cause to legally authorize and change her surname to Alfon. The birth certificate clearly shows that
the father of petitioner is Filomeno Duterte. Petitioner likewise admitted this fact in her testimony. To allow
petitioner to change her surname from Duterte to Alfon is equivalent to allowing her to use her mother's
surname. Article 364 of the Civil Code provides:

Legitimate and legitimated children shall principally use the surname of the father.

If another purpose of the petitioner is to carry the surname of Alfon because her uncle who reared her since
childhood has the surname "Alfon" then the remedy is not a petition for change of name.

WHEREFORE, the petition insofar as the first name is granted but denied with respect to the surname.
Petitioner is authorized to change her name from Maria Estrella Veronica Primitiva Duterte to Estrella Alfon
Duterte.

Let copy of this order be furnished the Local Civil Registrar of Pasig, Metro Manila pursuant to Section 3, Rule
103 of the Rules of Court.

The lower court should have fully granted the petition.

The only reason why the lower court denied the petitioner's prayer to change her surname is that as legitimate
child of Filomeno Duterte and Estrella Alfon she should principally use the surname of her father invoking Art.
364 of the Civil Code. But the word "principally" as used in the codal provision is not equivalent to "exclusively"
so that there is no legal obstacle if a legitimate or legitimated child should choose to use the surname of its
mother to which it is equally entitled. Moreover, this Court in Haw Liong vs. Republic, G.R. No. L-21194. April
29, 1966, 16 SCRA 677, 679, said: têñ.£îhqwâ£

The following may be considered, among others, as proper or reasonable causes that may warrant the grant of
a petitioner for change of name; (1) when the name is ridiculous, tainted with dishonor, or is extremely
difficult to write or pronounce; (2) when the request for change is a consequence of a change of' status, such
as when a natural child is acknowledged or legitimated; and (3) when the change is necessary to avoid
confusion Tolentino, Civil Code of the Philippines, 1953 ed., Vol. 1, p. 660).

In the case at bar, it has been shown that petitioner has, since childhood, borne the name Estrella S. Alfon
although her birth records and baptismal certificate show otherwise; she was enrolled in the schools from the
grades up to college under the name Estrella S. Alfon; all her friends call her by this name; she finished her
course in Nursing in college and was graduated and given a diploma under this name; and she exercised the
right of suffrage likewise under this name. There is therefore ample justification to grant fully her petition
which is not whimsical but on the contrary is based on a solid and reasonable ground, i.e. to avoid confusion.

WHEREFORE, the Order appealed from is hereby modified in that, the petitioner is allowed to change not only
her first name but also her surname so as to be known as ESTRELLA S. ALFON. No costs.

SO ORDERED.
G.R. No. 165879 November 10, 2006

MARIA B. CHING, Petitioner,

vs.
JOSEPH C. GOYANKO, JR., EVELYN GOYANKO, JERRY GOYANKO, IMELDA GOYANKO, JULIUS GOYANKO, MARY
ELLEN GOYANKO AND JESS GOYANKO, Respondents.

DECISION

CARPIO MORALES, J.:

On December 30, 1947, Joseph Goyanko (Goyanko) and Epifania dela Cruz (Epifania) were married.1 Out of the
union were born respondents Joseph, Jr., Evelyn, Jerry, Imelda, Julius, Mary Ellen and Jess, all surnamed
Goyanko.

Respondents claim that in 1961, their parents acquired a 661 square meter property located at 29 F. Cabahug
St., Cebu City but that as they (the parents) were Chinese citizens at the time, the property was registered in
the name of their aunt, Sulpicia Ventura (Sulpicia).

On May 1, 1993, Sulpicia executed a deed of sale2 over the property in favor of respondents’ father Goyanko.
In turn, Goyanko executed on October 12, 1993 a deed of sale3 over the property in favor of his common-law-
wife-herein petitioner Maria B. Ching. Transfer Certificate of Title (TCT) No. 138405 was thus issued in
petitioner’s name.

After Goyanko’s death on March 11, 1996, respondents discovered that ownership of the property had already
been transferred in the name of petitioner. Respondents thereupon had the purported signature of their father
in the deed of sale verified by the Philippine National Police Crime Laboratory which found the same to be a
forgery.4

Respondents thus filed with the Regional Trial Court of Cebu City a complaint for recovery of property and
damages against petitioner, praying for the nullification of the deed of sale and of TCT No. 138405 and the
issuance of a new one in favor of their father Goyanko.

In defense, petitioner claimed that she is the actual owner of the property as it was she who provided its
purchase price. To disprove that Goyanko’s signature in the questioned deed of sale is a forgery, she presented
as witness the notary public who testified that Goyanko appeared and signed the document in his presence.

By Decision of October 16, 1998,5 the trial court dismissed the complaint against petitioner, the pertinent
portions of which decision read:

There is no valid and sufficient ground to declare the sale as null and void, fictitious and simulated. The
signature on the questioned Deed of Sale is genuine. The testimony of Atty. Salvador Barrameda who declared
in court that Joseph Goyanko, Sr. and Maria Ching together with their witnesses appeared before him for
notarization of Deed of Sale in question is more reliable than the conflicting testimonies of the two document
examiners. Defendant Maria Ching asserted that the Deed of Sale executed by Joseph Goyanko, Sr. in her favor
is valid and genuine. The signature of Joseph Goyanko, Sr. in the questioned Deed of Absolute Sale is genuine
as it was duly executed and signed by Joseph Goyanko, Sr. himself.

The parcel of lands known as Lot No. 6 which is sought to be recovered in this case could never be considered
as the conjugal property of the original Spouses Joseph C. Goyanko and Epifania dela Cruz or the exclusive
capital property of the husband. The acquisition of the said property by defendant Maria Ching is well-elicited
from the aforementioned testimonial and documentary evidence presented by the defendant. Although for a
time being the property passed through Joseph Goyanko, Sr. as a buyer yet his ownership was only temporary
and transitory for the reason that it was subsequently sold to herein defendant Maria Ching. Maria Ching
claimed that it was even her money which was used by Joseph Goyanko, Sr. in the purchase of the land and so
it was eventually sold to her. In her testimony, defendant Ching justified her financial capability to buy the land
for herself. The transaction undertaken was from the original owner Sulpicia Ventura to Joseph Goyanko, Sr.
and then from Joesph Goyanko, Sr. to herein defendant Maria Ching.

The land subject of the litigation is already registered in the name of defendant Maria Ching under TCT No.
138405. By virtue of the Deed of Sale executed in favor of Maria Ching, Transfer Certificate of Title No. 138405
was issued in her favor. In recognition of the proverbial virtuality of a Torrens title, it has been repeatedly held
that, unless bad faith can be established on the part of the person appearing as owner on the certificate of
title, there is no other owner than that in whose favor it has been issued. A Torrens title is not subject to
collateral attack. It is a well-known doctrine that a Torrens title, as a rule, is irrevocable and indefeasible, and
the duty of the court is to see to it that this title is maintained and respected unless challenged in a direct
proceedings [sic].6 (Citations omitted; underscoring supplied)

Before the Court of Appeals where respondents appealed, they argued that the trial court erred:

1. . . . when it dismissed the complaint a quo . . . , in effect, sustaining the sale of the subject property between
Joseph, Sr. and the defendant-appellee, despite the proliferation in the records and admissions by both parties
that defendant-appellee was the "mistress" or "common-law wife" of Joseph, Sr..

2. . . . when it dismissed the complaint a quo . . . , in effect, sustaining the sale of the subject property between
Joseph, Sr. and the defendant-appellee, despite the fact that the marriage of Joseph, Sr. and Epifania was then
still subsisting thereby rendering the subject property as conjugal property of Joseph, Sr. and Epifania.

3. . . . in dismissing the complaint a quo . . . , in effect, sustaining the validity of the sale of the subject property
between Joseph, Sr. and the defendant-appellee, despite the clear findings of forgery and the non-credible
testimony of notary public.7

By Decision dated October 21, 2003,8 the appellate court reversed that of the trial court and declared null and
void the questioned deed of sale and TCT No. 138405. Held the appellate court:

. . . The subject property having been acquired during the existence of a valid marriage between Joseph Sr. and
Epifania dela Cruz-Goyanko, is presumed to belong to the conjugal partnership. Moreover, while this
presumption in favor of conjugality is rebuttable with clear and convincing proof to the contrary, we find no
evidence on record to conclude otherwise. The record shows that while Joseph Sr. and his wife Epifania have
been estranged for years and that he and defendant-appellant Maria Ching, have in fact been living together as
common-law husband and wife, there has never been a judicial decree declaring the dissolution of his
marriage to Epifania nor their conjugal partnership. It is therefore undeniable that the 661-square meter
property located at No. 29 F. Cabahug Street, Cebu City belongs to the conjugal partnership.

Even if we were to assume that the subject property was not conjugal, still we cannot sustain the validity of the
sale of the property by Joseph, Sr. to defendant-appellant Maria Ching, there being overwhelming evidence on
records that they have been living together as common-law husband and wife. On this score, Art. 1352 of the
Civil Code provides:

"Art. 1352. Contracts without cause, or with unlawful cause, produce no effect whatsoever. The cause is
unlawful if it is contrary to law, morals, good customs, public order or public policy."

We therefore find that the contract of sale in favor of the defendant-appellant Maria Ching was null and void
for being contrary to morals and public policy. The purported sale, having been made by Joseph Sr. in favor of
his concubine, undermines the stability of the family, a basic social institution which public policy vigilantly
protects. Furthermore, the law emphatically prohibits spouses from selling property to each other, subject to
certain exceptions. And this is so because transfers or conveyances between spouses, if allowed during the
marriage would destroy the system of conjugal partnership, a basic policy in civil law. The prohibition was
designed to prevent the exercise of undue influence by one spouse over the other and is likewise applicable
even to common-law relationships otherwise, "the condition of those who incurred guilt would turn out to be
better than those in legal union.9 (Underscoring supplied)

Hence, the present petition, petitioners arguing that the appellate court gravely erred in:

I.

. . . APPLYING THE STATE POLICY ON PROHIBITION AGAINST CONVEYANCES AND TRANSFERS OF PROPERTIES
BETWEEN LEGITIMATE AND COMMON LAW SPOUSES ON THE SUBJECT PROPERTY, THE SAME BEING FOUND BY
THE COURT A QUO, AS THE EXCLUSIVE PROPERTY OF PETITIONER, AND THAT THE SAME WAS NEVER PART OF
THE CONJUGAL PROPERTY OF THE MARRIAGE BETWEEN RESPONDENTS’ MOTHER EPIFANIA GOYANKO AND
PETITIONER’S COMMON LAW HUSBAND, JOSEPH GOYANKO, SR., NOR THE EXCLUSIVE OR CAPITAL PROPERTY
OF THE LATTER AT ANYTIME BEFORE THE SAME WAS VALIDLY ACQUIRED BY PETITIONER.

II.

. . . NOT FINDING THAT A JURIDICAL RELATION OF TRUST AS PROVIDED FOR UNDER ARTICLES 1448 AND 1450
OF THE NEW CIVIL CODE CAN VALIDLY EXIST BETWEEN COMMON LAW SPOUSES.

III.

. . . NOT FINDING THAT A CONVEYANCE OVER A PROPERTY MADE BY A TRUSTEE, WHO BECAME AS SUCH IN
CONTEMPLATION OF LAW, AND WHO HAPPENS TO BE A COMMON LAW HUSBAND OF THE BENEFICIARY, IS
NOT A VIOLATION OF A STATE POLICY ON PROHIBITION AGAINST CONVEYANCES AND TRANSFERS OF
PROPERTIES BETWEEN LEGITIMATE AND COMMON LAW SPOUSES.

IV.
. . . ALLOWING RESPONDENTS TO ABANDON THEIR ORIGINAL THEORY OF THEIR CASE DURING APPEAL.10

The pertinent provisions of the Civil Code which apply to the present case read:

ART. 1352. Contracts without cause, or with unlawful cause, produce no effect whatever. The cause is unlawful
if it is contrary to law, morals, good customs, public order or public policy.

ART. 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public
policy;

(2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of the transaction;

(4) Those whose object is outside the commerce of men;

(5) Those which contemplate an impossible service;

(6) Those where the intention of the parties relative to the principal object of the contract cannot be
ascertained;

(7) Those expressly prohibited or declared void by law.

These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived.

ARTICLE 1490. The husband and wife cannot sell property to each other, except:

(1) When a separation of property was agreed upon in the marriage settlements; or

(2) When there has been a judicial separation of property under Article 191. (Underscoring supplied)

The proscription against sale of property between spouses applies even to common law relationships. So this
Court ruled in Calimlim-Canullas v. Hon. Fortun, etc., et al.:11

Anent the second issue, we find that the contract of sale was null and void for being contrary to morals and
public policy. The sale was made by a husband in favor of a concubine after he had abandoned his family and
left the conjugal home where his wife and children lived and from whence they derived their support. The sale
was subversive of the stability of the family, a basic social institution which public policy cherishes and
protects.

Article 1409 of the Civil Code states inter alia that: contracts whose cause, object, or purposes is contrary to
law, morals, good customs, public order, or public policy are void and inexistent from the very beginning.
Article 1352 also provides that: "Contracts without cause, or with unlawful cause, produce no effect
whatsoever. The cause is unlawful if it is contrary to law, morals, good customs, public order, or public policy."

Additionally, the law emphatically prohibits the spouses from selling property to each other subject to certain
exceptions.1âwphi1 Similarly, donations between spouses during marriage are prohibited. And this is so
because if transfers or conveyances between spouses were allowed during marriage, that would destroy the
system of conjugal partnership, a basic policy in civil law. It was also designed to prevent the exercise of undue
influence by one spouse over the other, as well as to protect the institution of marriage, which is the
cornerstone of family law. The prohibitions apply to a couple living as husband and wife without benefit of
marriage, otherwise, "the condition of those who incurred guilt would turn out to be better than those in legal
union." Those provisions are dictated by public interest and their criterion must be imposed upon the will of
the parties. . . .12 (Italics in the original; emphasis and underscoring supplied)

As the conveyance in question was made by Goyangko in favor of his common- law-wife-herein petitioner, it
was null and void.

Petitioner’s argument that a trust relationship was created between Goyanko as trustee and her as beneficiary
as provided in Articles 1448 and 1450 of the Civil Code which read:

ARTICLE 1448. There is an implied trust when property is sold, and the legal estate is granted to one party but
the price is paid by another for the purpose of having the beneficial interest of the property. The former is the
trustee, while the latter is the beneficiary. However, if the person to whom the title is conveyed is a child,
legitimate or illegitimate, of the one paying the price of the sale, no trust is implied by law, it being disputably
presumed that there is a gift in favor of the child.

ARTICLE 1450. If the price of a sale of property is loaned or paid by one person for the benefit of another and
the conveyance is made to the lender or payor to secure the payment of the debt, a trust arises by operation
of law in favor of the person to whom the money is loaned or for whom it is paid. The latter may redeem the
property and compel a conveyance thereof to him.

does not persuade.

For petitioner’s testimony that it was she who provided the purchase price is uncorroborated. That she may
have been considered the breadwinner of the family and that there was proof that she earned a living do not
conclusively clinch her claim.

As to the change of theory by respondents from forgery of their father’s signature in the deed of sale to sale
contrary to public policy, it too does not persuade. Generally, a party in a litigation is not permitted to freely
and substantially change the theory of his case so as not to put the other party to undue disadvantage by not
accurately and timely apprising him of what he is up against,13 and to ensure that the latter is given the
opportunity during trial to refute all allegations against him by presenting evidence to the contrary. In the
present case, petitioner cannot be said to have been put to undue disadvantage and to have been denied the
chance to refute all the allegations against her. For the nullification of the sale is anchored on its illegality per
se, it being violative of the above-cited Articles 1352, 1409 and 1490 of the Civil Code.

WHEREFORE, the petition is DENIED for lack of merit.

Costs against petitioner.

SO ORDERED
EN BANC

[G.R. No. L-28771. March 31, 1971.]

CORNELIA MATABUENA, Plaintiff-Appellant, v. PETRONILA CERVANTES, Defendant-Appellee.

Alegre, Roces, Salazar & Sañez, for Plaintiff-Appellant.

Fernando Gerona, Jr., for Defendant-Appellee.

SYLLABUS

1. CIVIL LAW; PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE; DONATIONS BY REASON OF MARRIAGE;
PROHIBITION AGAINST DONATION BETWEEN SPOUSES DURING MARRIAGE; APPLICABLE TO COMMON LAW
RELATIONSHIP. — While Art. 133 of the Civil Code considers as void a "donation between the spouses during
the marriage", policy considerations of the most exigent character as well as the dictates of morality require
that the same prohibition should apply to a common-law relationship. A 1954 Court of Appeals decision
Buenaventura v. Bautista, (50 O.G. 3679) interpreting a similar provision of the old Civil Code speaks
unequivocally. If the policy of the law is, in the language of the opinion of the then Justice J.B.L. Reyes of that
Court, "to prohibit donations in favor of the other consort and his descendants because of fear of undue and
improper pressure and influence upon the donor, a prejudice deeply rooted in our ancient law; ‘porque no se
engañen despojandose el uno al otro por amor que han de consuno,’ [according to] the Partidas (Part. IV, Tit.
Xl, LAW IV), reiterating the rationale ‘Ne mutuato amore invicem spoliarentur’ of the Pandects (Bk 24, Tit. I, De
donat, inter virum et uxorem); then there is every reason to apply the same prohibitive policy to persons living
together as husband and wife without benefit of nuptials. For it is not to be doubted that assent to such
irregular connection for thirty years bespeaks greater influence of one party over the other, so that the danger
that the law seeks to avoid is correspondingly increased. Moreover, as already pointed out by Ulpian (in his lib.
32 ad Sabinum, fr. 1), it would not be just that such donations should subsist lest the condition of those who
incurred guilt should turn out to be better. So long as marriage remains the cornerstone of our family law,
reason and morality alike demand that the disabilities attached to marriage should likewise attach to
concubinage.

2. ID.; SUCCESSION; INTESTATE SUCCESSION; SURVIVING SPOUSE; RULE WHERE A SISTER SURVIVES WITH THE
WIDOW. — The lack of validity of the donation made b~ the deceased to defendant Petronila Cervantes does
not necessarily result in plaintiff having exclusive right to the disputed property. Prior to the death of Felix
Matabuena, the relationship between him and the defendant was legitimated by their marriage on March 28.
1962. She is therefore his widow. As provided in the Civil Code, she is entitled to one-half of the inheritance
and the plaintiff, as the surviving sister to the other half.
DECISION

FERNANDO, J.:

A question of first impression is before this Court in this litigation. We are called upon to decide whether the
ban on a donation between the spouses during a marriage applies to a common-law relationship. 1 The
plaintiff, now appellant Cornelia Matabuena, a sister to the deceased Felix Matabuena, maintains that a
donation made while he was living maritally without benefit of marriage to defendant, now appellee Petronila
Cervantes, was void. Defendant would uphold its validity. The lower court, after noting that it was made at a
time before defendant was married to the donor, sustained the latter’s stand. Hence this appeal. The question,
as noted, is novel in character, this Court not having had as yet the opportunity of ruling on it. A 1954 decision
of the Court of Appeals, Buenaventura v. Bautista, 2 by the then Justice J. B. L. Reyes, who was appointed to
this Court later that year, is indicative of the appropriate response that should be given. The conclusion
reached therein is that a donation between common-law spouses falls within the prohibition and is "null and
void as contrary to public policy." 3 Such a view merits fully the acceptance of this Court. The decision must be
reversed.

In the decision of November 23, 1965, the lower court, after stating that in plaintiff’s complaint alleging
absolute ownership of the parcel of land in question, she specifically raised the question that the donation
made by Felix Matabuena to defendant Petronila Cervantes was null and void under the aforesaid article of the
Civil Code and that defendant on the other hand did assert ownership precisely because such a donation was
made in 1956 and her marriage to the deceased did not take place until 1962, noted that when the case was
called for trial on November 19, 1965, there was stipulation of facts which it quoted. 4 Thus: "The plaintiff and
the defendant assisted by their respective counsels, jointly agree and stipulate: (1) That the deceased Felix
Matabuena owned the property in question; (2) That said Felix Matabuena executed a Deed of Donation inter
vivos in favor of Defendant, Petronila Cervantes over the parcel of land in question on February 20, 1956,
which same donation was accepted by defendant; (3) That the donation of the land to the defendant which
took effect immediately was made during the common law relationship as husband and wife between the
defendant-done and the now deceased donor and later said donor and done were married on March 28, 1962;
(4) That the deceased Felix Matabuena died intestate on September 13, 1962; (5) That the plaintiff claims the
property by reason of being the only sister and nearest collateral relative of the deceased by virtue of an
affidavit of self-adjudication executed by her in 1962 and had the land declared in her name and paid the
estate and inheritance taxes thereon’" 5

The judgment of the lower court on the above facts was adverse to plaintiff. It reasoned out thus: "A donation
under the terms of Article 133 of the Civil Code is void if made between the spouses during the marriage.
When the donation was made by Felix Matabuena in favor of the defendant on February 20, 1956, Petronila
Cervantes and Felix Matabuena were not yet married. At that time they were not spouses. They became
spouses only when they married on March 28, 1962, six years after the deed of donation had been executed."
6

We reach a different conclusion. While Art. 133 of the Civil Code considers as void a "donation between the
spouses during the marriage," policy considerations of the most exigent character as well as the dictates of
morality require that the same prohibition should apply to a common-law relationship. We reverse.
1. As announced at the outset of this opinion, a 1954 Court of Appeals decision, Buenaventura v. Bautista, 7
interpreting a similar provision of the old Civil Code 8 speaks unequivocally. If the policy of the law is, in the
language of the opinion of the then Justice J.B.L. Reyes of that Court, "to prohibit donations in favor of the
other consort and his descendants because of fear of undue and improper pressure and influence upon the
donor, a prejudice deeply rooted in our ancient law; ‘porque no se engañen despojandose el uno al otro por
amor que han de consuno [according to] the Partidas (Part IV, Tit. XI, LAW IV), reiterating the rationale ‘Ne
mutuato amore invicem spoliarentur’ of the Pandects (Bk. 24, Tit. 1, De donat, inter virum et uxorem); then
there is every reason to apply the same prohibitive policy to persons living together as husband and wife
without the benefit of nuptials. For it is not to be doubted that assent to such irregular connection for thirty
years bespeaks greater influence of one party over the other, so that the danger that the law seeks to avoid is
correspondingly increased. Moreover, as already pointed out by Ulpian (in his lib. 32 ad Sabinum, fr. 1), ‘it
would not be just that such donations should subsist, lest the condition of those who incurred guilt should turn
out to be better.’ So long as marriage remains the cornerstone of our family law, reason and morality alike
demand that the disabilities attached to marriage should likewise attach to concubinage." 9

2. It is hardly necessary to add that even in the absence of the above pronouncement, any other conclusion
cannot stand the test of scrutiny. It would be to indict the framers of the Civil Code for a failure to apply a
laudable rule to a situation which in its essentials cannot be distinguished. Moreover, if it is at all to be
differentiated, the policy of the law which embodies a deeply-rooted notion of what is just and what is right
would be nullified if such irregular relationship instead of being visited with disabilities would be attended with
benefits. Certainly a legal norm should not be susceptible to such a reproach. If there is ever any occasion
where the principle of statutory construction that what is within the spirit of the law is as much a part of it as
what is written, this is it. Otherwise the basic purpose discernible in such codal provision would not be
attained. Whatever omission may be apparent in an interpretation purely literal of the language used must be
remedied by an adherence to its avowed objective. In the language of Justice Pablo: "El espiritu que informa la
ley debe ser la luz que ha de guiar a los tribunales en la aplicación de sus disposiciones.’’ 10

3. The lack of validity of the donation made by the deceased to defendant Petronila Cervantes does not
necessarily result in plaintiff having exclusive right to the disputed property. Prior to the death of Felix
Matabuena, the relationship between him and the defendant was legitimated by their marriage on March 28,
1962. She is therefore his widow. As provided for in the Civil Code, she is entitled to one-half of the inheritance
and the plaintiff, as the surviving sister, to the other half. 11

WHEREFORE, the lower court decision of November 23, 1965 dismissing the complaint with costs is reversed.
The questioned donation is declared void, with the rights of plaintiff and defendant as pro indiviso heirs to the
property in question recognized. The case is remanded to the lower court for its appropriate disposition in
accordance with the above opinion. Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Barredo, Villamor and Makasiar, JJ., concur.
G.R. No. 95398 August 16, 1991

MARIO R. MELCHOR, petitioner,

vs.
COMMISSION ON AUDIT, respondent.
Polistico Law Office for petitioner

GUTIERREZ, JR., J.:

Is the petitioner personally liable for the amout paid for the construction of a public school building on the
ground that the infrastructure contract is null and void for want of one signature?

The facts are uncontroverted.

On July 15, 1983, petitioner Mario R. Melchor, in his capacity as Vocational School Administrator of Alangalang
Agro-Industrial School of Alangalang, Leyte, entered into a contract with Cebu Diamond Construction
(hereinafter referred to as contractors for the construction of Phase I of the home Technology Building of said
school for the price of P488,000. Pablo Narido, (thief accountant of the school, issued a certificate of
availability of funds to cover the construction cost. Narido, however, failed to sign as a Witness to the contract,
contrarily to the requirement of Section I of Letter of Instruction (LOI) No. 968.

The contract was approved by the then Minister of Education, Culture and Sports Onofre D. Corpuz. The
relevant parts of the contract are quoted below:

That for and in consideration of the sum of FOUR HUNDRED EIGHTY EIGHT THOUSAND PESOS (P488,000.00),
Philippine Currency, the CONTRACTOR, at his own proper cost and expense willfully and faithfully perform all
works, and unless otherwise provided, furnish all labor, materials, equipment necessary for the construction
and completion of Phase I of the Home Technology Building for the Alangalang Agro-Industrial School of
Alangalang, Leyte to be completed in accordance with the plans and specifications and all terms, conditions
and instructions contained in the general and special conditions of contract, as well as those contained in the
Notice to Bidders, Tenderers or Advertisement, Instruction to Bidders Tenderers, Supplemental Specifications,
Bond Articles, and other essential related documents, which are made and acknowledged as Integral parts of
this Agreement, by reference and/or Incorporation, including the permission of Administrative Order No. 81 of
the President, dated January 17, 1964, ... (Rollo, p. 25)

While the construction of Phase I was under way, the contractor, in a letter dated November 8, 1983 addressed
to Melchor, sought an additional charge of P73,000 equivalent to 15% of the stipulated amount due to an
increase in the cost of labor and construction materials.

In a letter dated November 17, 1983, the petitioner referred the contractor's request for additional charge to
the Regional Director, Ministry of Education, Culture and Sports (MECS). The petitioner in said letter asked for
approval of the contractor's additional charge, pointing out that such additional charge shall be taken from the
1984 non-infrastructure capital outlay and part of the 1984 maintenance and operating expenses. The
petitioner, in a second Indorsement dated November 22, 1983, requested the approval by the COA Regional
Director in Tacloban City of the contractor's request for adjustment of the cost of the contract.

In an Indorsement dated November 17, 1983, Servillano C. Dela Cruz, Acting Assistant Regional Director ' MECS
Regional Office No. VIII, Tacloban City, approved the contractor's request for additional charge subject,
however, to the availability of funds and the imprimatur of the Resident Auditor of the School. On its part, the
COA Regional Office No. VIII, Tacloban City, through Regional Director, Sopronio Flores, Jr., advanced the view
that "the approval of the police escalation rests on the Minister or head of the agency concerned. Our
participation in this regard shall be on the post-audit of transactions as emphasized under COA Circular No.
82195."

Meanwhile, the contractor, anticipating that it could not meet the deadline for the project, requested a series
of extensions which the petitioner granted. However, on April 10, 1984, the contractor gave up the project
mainly to save itself from further losses due to, among other things, increased cost of construction materials
and labor.

At the time the contractor ceased working on the project, it had accomplished only 61% of the construction
work valued at P344,430.88. However, as of September 13, 1984, the contractor had been paid the total
amount of P515,305.60. The excess paid on the value of the 61% accomplishment costing approximately
P172,003.26 represented the extra work done by the contractor which was found necessary.

Consequently, the petitioner wrote a letter dated September 19, 1984 to Ms. Gilda Ramos, COA Resident
Auditor of the school, requesting the latter to advise the former on whether to pursue condoning the contract
or institute a legal action for breach of contract against the contractor. In turn, Ms. Ramos referred the matter
to COA Regional Director in Tacloban City, Cesar A. Damole who in a third Indorsement dated April 8, 1985,
directed Ms. Ramos to disallow the payment of P515,305.60 in post-audit on the ground that the contract was
null and void for lack of signature of the chief accountant of the school as witness to it, as required under
Section 1 of LOI 968, for which reason the petitioner was made personally liable for the amount paid to the
contractor.

On May 3, 1985, the petitioner wrote a letter addressed to the Regional Director, COA Regional Office No. VIII,
Tacloban City, seeking reconsideration of his directive to the Resident Auditor of the school to disallow the
payment of P515,305.60 to the contractor. The petitioner sought reconsideration on the following grounds: a)
the Certificate of Availability of Funds signed by the chief accountant of the school, being an integral part, of
the contract, substantially complied with the requirement of LOI 968 that the signature of said accountant
must be affixed as witness to the contract, b) the petitioner did not exceed his authority because the contract
was approved by the head of the agency concerned c) the Resident Auditor of the school who had been
furnished a copy of the contract did not object to the contract because of that flaw; and d) the petitioner
religiously complied with the provisions of P.D. 1445 (otherwise known as "The Government Auditing Code of
the Phils."), specifically, Sections 85 and 86 as to the requirements in the execution of a government contract.

In a first Indorsement dated July 17, 1985, COA Regional Director of Tacloban City, Cesar A. Damole denied the
petitioner's motion for reconsideration. Immediately, petitioner Melchor appealed to the COA Head Office
which dismissed his appeal for lack of merit. The COA Head Office likewise denied the petitioner's requests for
reconsideration.

Hence, this petition.

The sole issue of this Court's consideration is whether or not petitioner Melchor should be held personally
liable for the amount of P515,305.60 paid to the contractor. This P515,305.60 may be broken down into:

1) P344,430.80 — representing 6l% of equivalent payment for the work done by the contractor within the
contract specifications, and
2) P172,003.206 — representing payment for extra work orders, not included in the contract
specifications, which were incurred to make the building structure strong.

The amounts of P344,430.80 and P172,003.26, when added together, do not equal P515,305.60. The records
do not explain the reason for the discrepancy. At any rate, the contending parties do not question the
correctness of these amounts.

Respondent COA maintains that the contract entered into by the petitioner with Cebu Diamond Construction is
null and void since the chief accountant did not affix his signature to the contract, in violate on of the
requirements of LOI 968.

Section 1 of LOI 968, dated December 17, 1979, provides:

1. All contracts for capital projects and for the supply of commodities and services, including equipment,
maintenance contracts., and other agreements requiring payments which are chargeable to agency current
operating or capital expenditure funds, shall be signed by agency heads or other duly authorized official only
when there are available funds. The Chief Accountant of the contracting agency shall sign such contracts as
witness and contracts without such witness hall be considered as null and void.

According to COA, since there was no compliance with the above provision, then the amount of P344,430.80
should be disallowed iii post-audit and the petitioner should be personally able for said amount.

The petitioner reasons that the absence of the accountant's signature as witness to the contract should not
militate against its validity. He cites Section 86 of PD 1445, which states:

Certificate Showing Appropriation to Meet Contract — ... no contract involving the expenditure of public fund
by any government agency shall be entered into or authorized unless the proper accounting official of the
agency concerned shall have certified to the officer entering into the obligation that funds have been duly
appropriated for the purpose and that the amount necessary to cover the proposed contract for the current
fiscal year is available for expenditure on account thereof, subject to verification, modification by the auditor
concerned. The certificate, signed by the proper accounting official and the, auditor who verified it, shall be
attached to and become an integral part of the proposed contract, and the sum so certified shall not thereafter
be available for expenditure for any other purpose until the obligation of the government agency concerned
under the contract is fully extinguished.

Petitioner Melchor urges that the issuance by the chief accountant of a "Certificate of Availability of Funds"
compensates for the latter's non-signing as a contract witness since under Section 86 of PD 1445, the
certificate is attached to and becomes an integral part of the contract. He argues that there was, in effect,
substantial compliance with the mandate of LOI 968.

Moreover the petitioner contends that assuming arguendo that the contract is null and void, he should still not
be made personally accountable for the amount paid to the contractor. He cites this Court's resolution in Royal
Trust Corporation v. Commission on Audit, G.R. No. 84202, November 22, 1988. In that case. despite the
absence of a specific covering appropriation as required under COA Resolution No. 86-58, the contractor was
allowed by the Court to be compensated on a quantum meruit basis.
Under the circumstances of this case, the Court finds that the contract executed by the petitioner and Cebu
Diamond Construction is enforceable and, therefore, the petitioner should not be made to personally pay for
the building already constructed.

LOI 968 and Sections 85 and 86 of PD 1445 implement and reinforce the constitutional mandate that "No
money shall be paid out of the Treasury except in pursuance of an appropriation made by law" (Constitution,
Article VI, Section 29 [1]).

Under Sections 85 and 86 of PD 1445, before a government agency can enter into a contract involving
expenditure of government funds there must be an appropriation for such expenditure and the proper
accounting official must certify that funds have been appropriated for the purpose. Under LOI 968, the chief
accountant of the government agency, as the verifier of the availability of funds, must sign such contracts as
witness. The uniform intent of these provisions is to ensure that government contracts are signed only when
supported by available funds.

In the case before us, the chief accountant issued a certificate of availability of funds but failed to sign the
contract as witness. But since Section 86 states that the certificate shall be attached to and become an integral
part of the proposed contract, then the failure of the chief accountant to affix his signature to the contract was
somehow made up by his own certification which is the basic and more important validating document. The
contract moreover provided that "other essential related documents xxx are made and acknowledged as
integral parts of this agreement, by reference and/or incorporation." This is not to say that the heads of
government offices or institutions should not read carefully the fine print of official regulations governing
contracts. However, under the peculiar circumstances of this case, we agree with the petitioner's view that
there was substantial compliance with the requirements of LOI 968 in the execution of the contract. He has not
been charged under some regulations governing negligence in not going over auditing and accounting rules
more carefully. But even assuming some kind of administrative responsibility for not being more careful, he
should not be made to pay for a school building already constructed and serving an urgent need in his
province.

It is a rule of statutory construction that the court may consider the spirit and reason of a statute where a
literal meaning would lead to absurdity, contradiction, injustice or would defeat the clear purpose of the
lawmakers. (People v. Manantan 5 SCRA 684 [1962]) For this Court to draw a narrow and stringent application
of LOI 968 would be to lose sight of the purpose behind its enactment. The rationale for LOI 968, which is to
ensure that there are available funds to finance a proposed project, was already served by the chief
accountant's issuance of a certificate of fund availability.

Additionally, Section 2 of LOI 968 provides:

2. It shall be the responsibility of the Chief Accountant to verify the availability of funds, as duly evidenced
by programmed appropriations released by the Ministry of Budget and received by the agency, from which
such contract shall be ultimately payable. His signature shall be considered as constituting a certification to
that effect. (Emphasis Supplied)
Since, under the above proviso, the accountant's signature shall have the effect of a certification, then it may
be inferred that the accountant's certification, not his signature as a contract witness, is the more reliable
indicium of fund availability.

What further bolsters the contract's validity is the fact that the original contract for P488,000 and the 15%
price escalation of P73,000 bore the approval of the Minister of Education, Culture and Sports as required by
COA Circular No. 83-101-J (dated June 8, 1983) and the Implementing Rules of PD 1594. Under COA Circular
83-101-J, the Minister of Education, Culture and Sports has the authority to approve infrastructure projects not
exceeding P2 Million. Under Section III, CIII of the Implementing Rules of PD 1594, the Minister is empowered
to approve contract price escalation not exceeding 18% of the original contract price.

Moreover, under COA Circular No. 76-34 dated July 15,1976, within 5 days from receipt of a copy of the
contract, the COA is required to call the attention of management regarding defects or deficiencies of the
contract and suggest such corrective measures as are appropriate and warranted to facilitate the process of
the claim upon presentation. In this case, respondent COA does not deny the petitioner's claim that it was
furnished copies of the contract, together with supporting documents, a few days after approval thereof by the
Minister of Education, Culture and Sports. If the respondent had complied with this requirement, then the
absence of the accountant's signature as a witness to the contract could have been remedied. COA was also
negligent.

No less compelling than the foregoing reasons is the undisputed fact that the construction of the Home
Technology Building had long been completed and that the building is now being utilized as part of the
Alangalang Industrial School. In People v. Purisima 86 SCRA 542 (1978), we held that there exists a valid
presumption that undesirable consequences were never intended by a legislative measure, and that a
construction of which the statute is fairly susceptible is favored, which will avoid all objectionable,
mischievous, indefensible, wrongful, evil and injurious consequences. In the present case we consider it highly
inequitable to compel the petitioner, who had substantially complied With the mandate of LOI 968, to
shoulder the construction cost of the building when it is not he, but the government, which is reaping benefits
from it.

The Court therefore rules that respondent COA erred in disallowing in audit the amount of P344,430.88.

With respect to the remaining P12,003.26 paid by the petitioner to the contractor for extra work done, the
COA reasons that the extra work done. being more than 25% of the escalated original contract price, was null
and void because no supplemental agreement was executed. The respondent cites the implementing rules and
regulations of PD 1594 which provide:

5. A separate supplemental agreement may be entered into for all change orders or extra work orders if
the aggregate amount exceeds 25% of the escalated original contract price. (III CI paragraphs 5;) (Emphasis
supplied).

Under the facts of this case, we adjudge that respondent COA is not without legal basis in disallowing the
P172,003.26 payment for the extra work orders. However, since the word "may" was used in the Decree then
the requirement of a supplemental agreement under all circumstances may not always be mandatory. There is
no need to go into any possible exceptions because we find the rule applicable in this case.
Under COA Circular 83-101-J, supra, the Minister of Education, Culture and Sports has the authority to approve
extra work orders or other variation orders not exceeding 50% of the original contract price or P1 Million
whichever is less. In this case, there is no showing that the extra work order was approved by the Minister.

Moreover, a variation order (which may take the form of a change order, extra work or supplemental
agreement) is a contract by itself and involves the expenditure of public funds to cover the cost of the work
called for thereunder. (Fernandez, A Treatise on Government Contracts under Philippine Law, 115-116 [1985])
As such, it is subject to the restrictions imposed by Sections 85 and 86 of PD 1445 and LOI 968-COA Circular
No. 80-122, dated January 15, 1980, likewise ensures that an extra work order is approved only when
supported by available funds. Again, the petitioner has not presented proof of an appropriation to cover the
extra work order.

For a failure to show the approval by the proper authority and to submit the corresponding appropriation, We
declare the contract for extra works null and void. Section 87 of PD 1445 states:

Any contract entered into contrary to the requirements of the two immediately preceding sections shall be
void, and the officer or offices entering into the contract shall be liable to the government or other contracting
party for any consequent damage to the same extent as if the transaction had been wholly between private
parties. (Emphasis supplied)

This does not mean, however, that the petitioner should be held personally liable and automatically ordered to
return to the government the full amount of P172,003.26.

As previously discussed, it would be unjust to Order the petitioner to shoulder the expenditure when the
government had already received and accepted benefits from the utilization of the building.

In Royal Trust Construction v. Commission on Audit, supra, cited by the petitioner, the Court, in the interest of
substantial justice and equity, allowed payment to the contractor on a quantum meruit basis despite the
absence of a written contract and a covering appropriation.

In a more recent case, Dr. Rufino O. Eslao v. Commission on Audit, G.R. No. 89745, April 8, 1991, the Court
directed payment to the contractor on a quantum meruit basis despite the petitioner's failure to undertake a
public bidding. In that case, the Court held that "to deny payment to the contractor of the two buildings which
are almost fully completed and presently occupied by the university would be to allow the government to
unjustly enrich itself at the expense of another.1âwphi1

Where payment is based on quantum meruit the amount of recovery would only be the reasonable value of
the thing or services rendered regardless of any agreement as to value. (Tantuico, State Audit Code of the
Philippines Annotated, 471 [1982])

Although the two cases mentioned above contemplated a situation where it is the contractor who is seeking
recovery, we find that the principle of payment by quantum meruit likewise applies to this case where the
contractor had already been paid and the government is seeking reimbursement from the public official who
heads the school. If, after COA determines the value of the extra works computed on the basis of quantum
meruit it finds that the petitioner made an excess or improper payment for these extra works, then petitioner
Melchor shall be liable only for such excess payment.
WHEREFORE, the petition is GRANTED. The decision of the respondent COA denominated as 11th Indorsement
dated November 11, 1988 and its resolution dated July 31, 1990 are hereby REVERSED and SET ASIDE.
Respondent COA is directed to allow in post-audit the payment of P344,430.80. Respondent COA is likewise
directed to determine on a quantum meruit basis the value of the extra works done, and after such
determination, to disallow in post-audit the excess payment, if any, made by the petitioner to the contractor.
The petitioner shall be personally liable for any such excess payment.

SO ORDERED.