B.

2 Provisions of the Bill of Rights Can only be invoked against the state: CASES

1. Fourth Amendment

Overview

I. INTERESTS PROTECTED

The Fourth Amendment of the U.S. Constitution provides that "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized."

The ultimate goal of this provision is to protect people’s right to privacy and freedom from
unreasonable intrusions by the government. However, the Fourth Amendment does not guarantee
protection from all searches and seizures, but only those done by the government and deemed
unreasonable under the law.

To claim violation of Fourth Amendment as the basis for suppressing a relevant evidence, the court
had long required that the claimant must prove that he himself was the victim of an invasion of
privacy to have a valid standing to claim protection under the Fourth Amendment. However, the
Supreme Court has departed from such requirement, issue of exclusion is to be determined solely
upon a resolution of the substantive question whether the claimant's Fourth Amendment rights have
been violated, which in turn requires that the claimant demonstrates a justifiable expectation of
privacy, which was arbitrarily violated by the government.

In general, most warrantless searches of private premises are prohibited under the Fourth
Amendment, unless specific exception applies. For instance, a warrantless search may be lawful, if an
officer has asked and is given consent to search; if the search is incident to a lawful arrest; if there is
probable cause to search and there is exigent circumstance calling for the warrantless search. Exigent
circumstances exist in situations where a situation where people are in imminent danger,
where evidence faces imminent destruction, or prior to a suspect's imminent escape.

On the other hand, warrantless search and seizure of properties are not illegal, if the objects being
searched are in plain view. Further, warrantless seizure of abandoned property, or of properties on an
open field do not violate Fourth Amendment, because it is considered that having expectation of
privacy right to an abandoned property or to properties on an open field is not reasonable.
However, in some states, there are some exception to this limitation, where some state authorities
have granted protection to open fields. States can always establish higher standards for searches and
seizures protection than what is required by the Fourth Amendment, but states cannot allow conducts
that violate the Fourth Amendment.

Where there was a violation of one’s fourth amendment rights by federal officials, A bivens action can
be filed against federal law enforcement officials for damages, resulting from an unlawful search and
seizure. Under the Bivens action, the claimant needs to prove that there has been a constitutional
violation of the fourth amendment rights by federal officials acting under the color of law.

However, the protection under the Fourth Amendment can be waived if one voluntarily consents to or
does not object to evidence collected during a warrantless search or seizure.

II. SEARCHES AND SEIZURES UNDER FOURTH AMENDMENT

The courts must determine what constitutes a search or seizure under the Fourth Amendment. If the
conduct challenged does not fall within the Fourth Amendment, the individual will not enjoy protection
under Fourth Amendment.
A. Search

A search under Fourth Amendment occurs when a governmental employee or agent of the

government violates an individual's reasonable expectation of privacy.
Constitute Reasonable Searches:

1. Strip searches and visual body cavity searches, including anal or genital inspections. (When
supported by probable cause and conducted in a reasonable manner.)
2. Electronic surveillance
Violates Constitute Reasonable Searches:

1. Dog-Sniff (If the inspection violates a reasonable expectation of privacy)

B. Seizure of a Person

A seizure of a person, within the meaning of the Fourth Amendment, occurs when the police's conduct
would communicate to a reasonable person, taking into account the circumstances surrounding the
encounter, that the person is not free to ignore the police presence and leave at his will.

Two elements must be present to constitute a seizure of a person.

1. There must be a show of authority by the police officer. (Presence of handcuffs or weapons,
the use of forceful language, and physical contact are each strong indicators of authority.)
2. Person being seized must submit to the authority. (An individual who ignores the officer’s
request and walks away has not been seized for Fourth Amendment purposes.)

An arrest warrant is preferred but not required to make a lawful arrest under the Fourth Amendment.
A warrantless arrest may be justified where probable cause and urgent need are present prior to the
arrest. Probable cause is present when the police officer has a reasonable belief in the guilt of the
suspect based on the facts and information prior to the arrest. For instance, a warrantless arrest may
be legitimate in situations where a police officer has a probable belief that a suspect has either
committed a crime or is a threat to the public security. Also, a police officer might arrest a suspect to
prevent the suspect’s escape or to preserve evidence. A warrantless arrest may be invalidated if the
police officer fails to demonstrate exigent circumstances.

The ability to make warrantless arrests are commonly limited by statutes subject to the due process
guaranty of the U.S. Constitution. A suspect arrested without a warrant is entitled to prompt judicial
determination, usually within 48 hours.

There are investigatory stops that fall short of arrests, but nonetheless, they fall within Fourth
Amendment protection. For instance, police officers can perform a terry stop or a traffic stop. Usually,
these stops provide officers with less dominion and controlling power and impose less of an
infringement of personal liberty for individual stopped. Investigatory stops must be temporary
questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.

An officer’s reasonable suspicion is sufficient to justify brief stops and detentions. To determine if the
officer has met the standard to justify the seizure, the court takes into account the totality of the
circumstances and examines whether the officer has a particularized and reasonable belief for
suspecting the wrongdoing. Probable cause gained during stops or detentions might effectuate a
subsequent warrantless arrest.
C. Seizure of Property

A seizure of property, within the meaning of the Fourth Amendment, occurs when there is some
meaningful interference with an individual’s possessory interests in the property.

In some circumstances, warrantless seizures of objects in plain view do not constitute seizures within

the meaning of Fourth Amendment. When executing a search warrant, an officer might be able
to seize an item observed in plain view even if it is not specified in the warrant.
III. WARRANT REQUIREMENT

A search or seizure is generally unreasonable and illegal without a warrant, subject to only a few

exceptions.

To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable
cause that a search or seizure is justified. A court-authority, usually a magistrate, will consider the
totality of circumstances to determine whether to issue the warrant.

The warrant requirement may be excused in:

1.  exigent circumstances if an officer has probable cause and obtaining a warrant is impractical

in the particular situation. For instance, in State v. Helmbright, 990 N.E.2d 154, Ohio court
held that a warrantless search of probationer's person or his place of residence is not violation
of the Fourth Amendment, if the officer who conducts the search possesses
“reasonable grounds” to believe that the probationer has failed to comply with the terms of
his probation.
2. consensual searches
3. certain brief investigatory stops
4. searches incident to a valid arrest
5. seizures of items in plain view

There is no general exception to the Fourth Amendment warrant requirement in national security

cases. Warrantless searches are generally not permitted in exclusively domestic security cases. In
foreign security cases, court opinions might differ on whether to accept the foreign security exception
to the warrant requirement generally and, if accepted, whether the exception should extend to both
physical searches and to electronic surveillances.

IV. REASONABLENESS REQUIREMENT

All searches and seizures under Fourth Amendment must be reasonable. No excessive force shall be

used. Reasonableness is the ultimate measure of the constitutionality of a search or seizure. Searches
and seizures with the warrant must also satisfy the reasonableness requirement.

On the other hand, warrantless searches and seizures are presumed to be unreasonable, unless they

fall within the few exceptions.

In cases of warrantless searches and seizures, the court will try to balance the degree of intrusion on
the individual’s right to privacy and the need to promote government interests and special needs in
exigent circumstances. The court will examine the totality of the circumstances to determine if
the search or seizure was justified. When analyzing the reasonableness standard, the court uses an
objective assessment and considers factors including the degree of intrusion by the search or
seizure and the manner in which the search or seizure is conducted.

V. EXCLUSIONARY RULE

Under the exclusionary rule, any evidence obtained in violation of the Fourth Amendment will be
excluded from criminal proceedings. There are a few exceptions to this rule.

VI. ELECTRONIC SURVEILLANCE

In recent years, the Fourth Amendment's applicability in electronic searches and seizures has received
much attention from the courts. With the advent of the internet and increased popularity of
computers, there has been an increasing amount of crime occurring electronically. Consequently,
evidence of such crime can often be found on computers, hard drives, or other electronic devices. The
Fourth Amendment applies to the search and seizure of electronic devices.

Many electronic search cases involve whether law enforcement can search a company-owned

computer that an employee uses to conduct business. Although the case law is split, the majority
holds that employees do not have a legitimate expectation of privacy with regard to information stored
on a company-owned computer. In the 2010 case of City of Ontario v. Quon (08-1332), the Supreme
Court extended this lack of an expectation of privacy to text messages sent and received on an
employer-owned pager.

Lately, electronic surveillance and wiretapping has also caused a significant amount of Fourth

Amendment litigation.

VII. THE USA PATRIOT ACT

1. Search Email and Telephonic Communications

Following the September 11, 2001 attacks on the World Trade Center and the Pentagon, Congress and
the President enacted legislation to strengthen the intelligence gathering community’s ability to
combat domestic terrorism. Entitled the USA Patriot Act, the legislation’s provisions aimed to increase
the ability of law enforcement to search email and telephonic communications in addition to medical,
financial, and library records.

One provision permits law enforcement to obtain access to stored voicemails by obtaining a
basic search warrant rather than a surveillance warrant. Obtaining a basic search warrant requires a
much lower evidentiary showing. A highly controversial provision of the Act includes permission for law
enforcement to use sneak-and-peak warrants. A sneak-and-peak warrant is a warrant in which law
enforcement can delay notifying the property owner about the warrant’s issuance. In an Oregon
federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-
and-peak warrants as unconstitutional and in violation of the Fourth Amendment. See 504 F.Supp.2d
1023 (D. Or. 2007).

2. National Security Letters (NSL)

The Patriot Act also expanded the practice of using National Security Letters (NSL). An NSL is an
administrative order that requires certain persons, groups, organizations, or companies to provide
documents about certain persons. These documents typically involve telephone, email, and financial
records. NSLs also carry a gag order, meaning the person or persons responsible for complying cannot
mention the existence of the NSL. Under the Patriot Act provisions, law enforcement can use NSLs
when investigating U.S. citizens, even when law enforcement does not think the individual under
investigation has committed a crime. The Department of Homeland Security has used NSLs frequently
since its inception. By using an NSL, an agency has no responsibility to first obtain a warrant or court
order before conducting its search of records.

3. Telephone Metadata Program

Another aspect of the Patriot Act, which has been highly confidential was the Telephone Metadata
program, which under § 215 of the Patriot Act, had allowed the NSA to collect data about Americans’
telephone calls in bulk, was reviewed by the Second Circuit in ACLU v. Clapper, in which the court held
the Telephone Metadata program illegal under the Congress’ original intent under the §215.

The Patriot Act has expired in mid-2015, and since June 2nd, 2015 has been repackaged under the
USA Freedom Act. Although it remains to be seen how the Freedom Act will be interpreted, with
respect to the Fourth Amendment protections, the new Act selectively re-authorized the Patriot Act,
while banning the bulk collection of data of American’s telephone records and internet metadata and
limited the government’s data collection to the “greatest extent reasonably practical” meaning the
government now cannot collect all data pertaining to a particular service provider or broad geographic
region.

VIII. FORTH AMENDMENT AND SUPERVISED RELEASE/PAROLE

Probationers—convicted criminal offender who is released into the community under supervision of a
probation officer in lieu of incarceration; or parolees—convicts who have served a portion of his
judicially imposed sentence in penal institutions, and is released for the remainder of the sentence
under supervision of a parole officer for good behavior—can also assert fourth amendment rights,
creating a potential confrontation between fundamental constitutional guarantee and the society’s
legitimate interest in correctional programs to prevent the convicts from lapsing back into a crime.
Traditionally, courts have struggled with various theories of parole and probation to justify the
complete denial of fourth amendment rights to the convicts on supervised release or probation. The
most prevalent of the theories was the “Custody Theory,” under which an offender was said to be
entitled to no more liberty than he would have enjoyed had he been incarcerated. Recently, however,
this rationale was rejected by Morrissey v. Brewer, which emphasized that the parolee’s status more
closely resembles that of an ordinary citizen than a prisoner. While the Court noted that since parole
revocation only changed the type of penalty imposed on an already-convicted criminal, the Court need
not afford the parolees “the full panoply of rights” available under the fourteenth amendment to a free
man facing criminal prosecution, the Court held that certain procedural protections must be
guaranteed to the parolees facing revocation of the parole. In general, the released offenders now
have been afforded full Fourth Amendment protection with respect to searches performed by the law
enforcement officials, and warrantless searches conducted by correctional officers at the request of
the police have also been declared unlawful.

However, in reviewing the searches undertaken by the correctional officers on their own initiative,
some courts have modified the traditional Fourth Amendment protections to accommodate the
correctional officers’ informational needs, developing a modified “Reasonable Belief” standard, under
which the correctional officer is permitted to make a showing of less than probable cause in order to
justify the intrusion of privacy into the released offender.
 2. 457 P.2d 661 (1969)

STATE of Oregon, Respondent, v. William Richard BRYAN, Appellant.

Court of Appeals of Oregon, In Banc.

Argued and Submitted July 10, 1969.

Decided August 22, 1969.

Oscar D. Howlett, Portland, argued the cause and filed brief for appellant.

Billy L. Williamson, Deputy Dist. Atty., Portland, argued the cause for respondent. With
him on brief was George Van Hoomissen, Dist. Atty., Portland.

Before SCHWAB, C.J., and LANGTRY, FOLEY, FORT, BRANCHFIELD, JJ.

SCHWAB, Chief Justice.

Defendant was accused, tried and convicted by jury of the crime of illegal possession of
narcotics (marihuana). Defendant appeals on the ground that the marihuana was
illegally seized, and, therefore, should not have been received in evidence. The
marihuana was discovered and turned over to the police by persons acting in their
private capacities and not with the participation or knowledge of any governmental
official. Thus, the question on appeal is when persons who are not law enforcement
officers, and who are not acting with the participation or knowledge of law enforcement
officers, "search and seize," are the Constitutions of the United States or the State of
Oregon violated.

*662 The defendant parked his car in a shopping center parking lot and left it. Sometime
later, two men, employed by the shopping center to supervise the parking lot, noted that
the vehicle had been on the lot for what they deemed an unusual length of time.
Following their normal practice in such instances, the parking lot attendants entered the
car in an effort to determine the owner's name by finding the vehicle registration
certificate. They did not find it on the sun visor and looked in the glove compartment.
There they found a package of marihuana and letters addressed to the defendant. They
called the police, and defendant's indictment, prosecution and conviction followed.

The parking lot attendants, in entering the vehicle, were not acting with the participation
or knowledge of the police or any other governmental officials, nor were they self-
appointed investigators looking for marihuana or evidence of criminal conduct.

The Fourth Amendment of the United States Constitution does not give protection
against searches and seizures by other than governmental agencies. As was said in
Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A.L.R. 1159
(1921):

"The Fourth Amendment gives protection against unlawful searches and seizures, and
as shown in the previous cases, its protection applies to governmental action. Its origin
and history clearly show that it was intended as a restraint upon the activities of
sovereign authority, and was not intended to be a limitation upon other than
governmental agencies. * * *." 256 U.S. at 475, 41 S. Ct. at 576.

Article I, § 9, of the Oregon Constitution does not prohibit the admission of evidence so
seized. State v. Olsen, 212 Or. 191, 193-194, 317 P.2d 938 (1957); Walker v. Penner,
190 Or. 542, 548, 227 P.2d 316 (1951).

Defendant, in effect, argues that Burdeau has been overruled by Mapp v. Ohio, 367
U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933 (1961) and Elkins v. United
States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960). We find no jurisdiction
which has so held. Wolf Low v. United States, 391 F.2d 61, 63 (9th Cir.), cert. den. 393
U.S. 849, 89 S. Ct. 136, 21 L. Ed. 2d 119 (1968); People v. Cheatham, 263 Cal. App. 2d
458, 69 Cal. Rptr. 679, 681 (2d Dis., Div. 5, 1968); People v. Horman, 22 N.Y.2d 378,
292 N.Y.S.2d 874, 239 N.E.2d 625, 627-628 (1968), cert. den. 393 U.S. 1057, 89 S. Ct.
698, 21 L. Ed. 2d 699 (1969).

Affirmed.
 3. Roy WALKER, Appellant,
v.
STATE of Arkansas, Appellee.
No. 5350.
Supreme Court of Arkansas.
June 3, 1968.
Rehearing Denied July 15, 1968.

Oliver L. Adams, Rogers, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
GEORGE ROSE SMITH, Justice.

Roy Walker was convicted of involuntary manslaughter and sentenced to imprisonment

for three years. According to the State's proof, Walker was driving a truck on a highway in
or near Eureka Springs at such a high speed that he lost control of the vehicle and struck
and killed Otto Miller, a pedestrian. The information charged that Walker was intoxicated
at the time. For reversal Walker contends that the court erred in allowing the prosecution
to introduce evidence of a blood test that showed Walker to have been intoxicated.
After the accident Walker, who was injured, was taken by someone to a hospital in Eureka
Springs, where he was treated as an outpatient. There Richard Stallman, a laboratory
technician, took a sample of Walker's blood without having asked his permission and sent
it to a pathologist in Fayetteville for analysis. The pathologist testified that the sample
contained .140 percent of alcohol when taken and that the percentage would probably
have been higher an hour earlier, when the accident occurred.
The appellant, citing Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826, 16 L.
Ed. 2d 908 (1966), and other cases, insists that the taking of the blood sample amounted
to such an unreasonable search and seizure as to be prohibited by the federal and state
constitutions. It does not appear, however, that Stallman acted either at the direction of
the police or by prearrangement with them. The search-and-seizure clauses are restraints
upon the government and its agents, not upon private individuals. People v.
Potter, 240 Cal. App. 2d 621, 49 Cal. Rptr. 892 (1966); State v. Brown,
Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957). Hence the proof
does not establish a denial of Walker's constitutional rights.
*122 Complaint is also made of the court's refusal to give an instruction informing the
jury that the decedent was under a duty to keep a proper lookout. We doubt the
applicability of such a civil standard to a criminal case, but in any event the point was not
included in the motion for a new trial and so is not available to the appellant in this court.
Dokes v. State, 241 Ark. 720, 409 S.W.2d 827 (1966).
Affirmed.
 4. GR No. L-824 January 14, 1948

HILARIO CAMINO MONCADO, recurrent,

v.
THE PEOPLE'S COURT AND JUAN M. LADAW, as Special Prosecutor, appealed.

Mr. Vicente J. Francisco on behalf of the appellant.

The First Assistant Attorney General Mr. Jose BL Reyes, Assistant Attorney General Mr. Carmelino G. Alvendia, and
the Special Attorney Mr. Juan M. Ladaw representing the respondents.

PABLO, J .:

In an original application for certiorari, the appellant, accused of the crime of treason in criminal case No. 3522 of the
People's Court, alleges that on April 4, 1945 at about 6 in the afternoon, he was arrested by members of the ICC of
the United States Army. United in his residence at Calle San Rafael, No. 199-A, Manila, without an arrest warrant and
was taken to the prisons of Muntinglupa, Rizal; that a week later his wife, who had moved to his house-residence at
Calle Rosario, No. 3, Quezon City, was invited by several members of CIC under the command of Lieutenant Olves
to witness the search of his house in the San Rafael Street; that I refused to follow them because they did not carry a
search warrant; but as they assured that even without her presence they had to do the search anyway, she
accompanies them; that upon arrival at the house, he saw that several effects were scattered on the ground,
including several documents; that Lieutenant Olves informed her that he had some documents with him to prove her
husband's guilt; that on June 27, 1946, the Complainant filed a motion before the People's Court requesting the
return of such documents, alleging as a reason that they had been obtained from his residence without a search
warrant, and said court, with serious abuse of discretion or excess of jurisdiction and following the doctrine
established in the matter of Alvero vs. Dizon (76 Phil., 637) denied it; that unless this Court orders the Special
Prosecutor to return them to the appellant, his constitutional rights guaranteed by the constitution would be
violated. And because he has no other simple, quick and adequate remedy in the ordinary course of the law, he asks
that this Court ( a ) annul the order of the People's Court of July 9, 1946; ( b ) that said Court be required to order the
return to the Complainant of such documents; ( c) that an injunction order be issued prohibiting the Special
Prosecutor from presenting them as evidence against the appellant in the matter of treason. These petitions show
that the documents are relevant evidence, in addition to being administrable because there is no rule that prevents it
(Model Code of Evidence, 87).

The appellant's contention that the decision in the case of Alvero against Dizon is well founded (76 Phil., 637) is not
applicable to the particular case. The documents in the Alvero affair have been seized by the members of the CIC
when the military government exercised its functions of the occupation army at its peak. On the other hand, when
they seized on April 11, 1945, the documents that are the subject of this case, General MacArthur on behalf of the
Government of the United States, had already reestablished on February 27 of the same year, the Commonwealth
with all its powers and prerogatives (41 Off. Gaz., 86). The Commonwealth government was already exercising all its
constitutional and legal powers without limitation in the City of Manila. The President had not suspended
constitutional guarantees.

It is a well-established doctrine in the Philippines, the United States, England, and Canada that the administrability of
evidence is not affected by the illegality of the means that the party has used to obtain it.  It is a doctrine followed for
many years "until - said this Court in Pueblo v. Carlos , 47 Jur. Fil., 660 - arose the dismal opinion of the majority in
the case of Boyd vs. US in 1885, which has exercised pernicious influence in many States on subsequent judicial
opinions. "

"The development of this doctrine of the matter Boyd vs US was as follows (.. A ) The cause of Boyd
continued without putting into question in the same court for twenty years, and meanwhile was receiving frequent
disapproval in the courts of State ( ante , paragraph 2183). ( b ) Then in the Adams v . New York case, in 1904, it was
implicitly dismissed in the Federal Supreme Court, and the orthodox precedents recorded in the State courts (ante ,
paragraph 2183) were expressly ( c ) Then, after another twenty years, in 1914, in the Weeks vs.. US, the Federal
Supreme Court moved at this time not by erroneous history, but by misplaced sentimentism - regressed to the
original doctrine of Boyd's case, but with one condition , namely, that the illegality of search and seizure should first
have been directly litigated and established by a motion, made before the trial, for the return of the confiscated
things; so that, after said motion, and only then, the illegality could be noticed in the main trial and the evidence thus
obtained should be excluded. .... "Under the authority of this doctrine of Weeks vs. US, and other decisions of the
same school the appellant exercises this appeal, requesting the return of the documents illegally taken by the
members of the CIC.
The Constitution guarantees the inviolability of individual rights in the following terms; "The right of the people to the
safety of their persons, dwellings, papers and effects against searches and kidnappings arrest will not be violated,
unless for probable cause that will be determined by the judge after examining under oath or affirmation the
complainant and the witnesses that I will present, and with a detailed description of the site to be registered and of
the people to be apprehended or of the things to be seized. " (Title III, article 1. or , paragraph 3 or .)

We agree with the appellant's claim that, under these constitutional guarantees, he had the right to have his house
respected, his documents should not be confiscated by any authority or agent of authority, without a duly issued
search warrant.

These constitutional limitations, however, do not go so far as to exclude as competent evidence documents obtained
illegally or improperly from him. The Regulations of the Courts, Rule 123, determine which evidence should be
excluded, which is allowable and competent, and does not classify evidence obtained illegally as incompetent. The
fundamental law indicated the limits to which the executive, legislative and judicial powers can reach in the exercise
of their foundations. The executive must not abuse his power, violating the domicile of the citizen or unduly seizing
his property and documents; the legislator must not pass laws that make the sacredness of the home illusory and the
courts must punish constitutional violators, regardless of whether they are public officials or not. vs . States, 28 SE,
624:

As we understand it, the main, if not the sole, purpose of our constitutional inhibitions against unreasonable
searches and seizures, was to place a salutary restriction upon the powers of government. That is to say,
we believe the framers of the constitutions of the United States and of this and other states merely sought to
provide against any attempt, by legislation or otherwise, to authorize, justify, or declare lawful, any
unreasonable search or seizure. This wise restriction was intended to operate upon legislative bodies, so as
to render ineffectual any effort to legalize by statute what the people expressly stipulated could in no event
be made lawful; upon executives, so that no law violative of this constitutional inhibition should ever be
enforced; and upon the judiciary, so as to render it the duty of the courts to denounce as unlawful every
unreasonable search and seizure, whether confessedly without any color of authority, or sought to be
justified under the guise of legislative sanction. For the misconduct of private persons, acting upon their
individual responsibility and of their own decision, surely none of the three divisions of government is
responsible. If an official, or a mere petty agent of the state, exceeds or abuses the authority with which he
is clothed, he is to be deemed as acting, not for the state, but for himself only; and therefore he alone, and
not the state, should be held accountable for his acts. If the constitutional rights of a citizen are invaded by a
mere individual, the most that any branch of government can do is to afford the citizen such redress as a
possible, and bring the wrongdoer to account for his unlawful conduct. . . . .

We believe that the authors of the Philippine constitution have never had the slightest idea to grant criminal immunity
to those who violate the sanctity of the home, nor to any violator of criminal law for the sole fact that the evidence
against him has been obtained illegally. The healthy, fair and orderly procedure is to punish in accordance with article
128 of the Revised Penal Code the individual who, under the cloak of a public official, without a search warrant,
unduly desecrates the domicile of a citizen and seizes their papers and that that citizen also be punished if he is guilty
of a crime, regardless of whether the proof of his guilt has been obtained illegally. The means used in acquiring the
document does not alter its probative value. So in Stevenson vs.. Earnest, 80, Ill. 513, it was said: "It is contemplated,
and such ought ever to be the fact, that the records of courts remains permanently in the places assigned by the law
for their custody. It does not logically follow, however, that the records, being obtained, cannot be used as
instruments of evidence; for the mere fact of (illegally) obtaining them does not change that which is written in them ...
Suppose the presence of a witness to have been obtained by fraud or violence, while the party thus procuring the
attendance of the witness would be liable to severe punishment, surely that could not be urged against the
competency of the witness. If he could not, why shall a record, although illegally taken from its proper place of
custody and brought before the Court, but otherwise free from suspicion, be hold incompetent?

". In Com vs .. Dana, 2 METC, 329. e; Court said:" Admitting That the lottery tickets and materials Were Seized
illegally, this is still no legal objection to the admission of them in evidence. If the search warrant where illegal, or if
the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer,
would be responsible for the wrong done. But this is no good reason for excluding the papers seized, as evidence, if
they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence the Court can
take no notice how they were obtained, - whether lawfully or unlawfully, - nor would they form a collateral issue to
determine that question. "

The appellant cites the case of Bureau v. McDowell in the following terms:

 Certain books, papers, memoranda, etc., of McDowell's private property were stolen by certain persons who
were interested in the investigation that the Grand Jury was going to carry out against Mcdowell for certain
offenses that he was said to have committed, related to fraudulent use of the mail. These documents and
books were later delivered to Burdeau by the people who had raised them. Burdeau was the special
assistant to the Attorney-General of the United States, who was to have the direction and control of the
entire United States, who was to have the direction and control of the prosecution before the Grand
Jury. McDowell tried to prevent Burdeau from using these books and documents through a motion that he
had filed to do so. Burdeau opposed the motion, claiming that he had the right to use those papers.

"We know of no constitutional principal which requires the government to surrender the papers under such
circumstances.

"The papers having come into possession of the government without a violation of petitioner's rights by
governmental authority, we see no reason why the fact that individuals unconnected with the government
may have wrongfully taken them, should prevent them from being held for use in prosecuting an offense
where the documents are of incriminatory character. " (Burdeau vs. McDowell.)

"Will our Supreme Court adopt the doctrine that is announced in this decision? We submit that this is a bad
rule of law, and in our humble opinion, it should not be adopted by our Court."

The appellant then cites decisions of some Supreme Courts of State that have not adopted this doctrine of the
Supreme Federal Court. It is not weird. Each court adopts its own criteria. But of the 45 states of the American Union
- According to Judge Cardozo in its decision handed down in 1926 in People vs. Defore, 150 NE, 585 - fourteen
adopted Weeks's heterodox doctrine and 31 rejected it, and according to Wigmore, in 1940, fourteen years later, six
more states, 37 in total, including Hawaii and Puerto Rico rejected it, maintaining the orthodox doctrine. . (8 Wigmore
on Evidence, 3. a .. Ed, pages 5-11) and depues to consider the various decisions of the two schools, Cardozo made
the pertinent observations on the doctrine of Weeks:

We are confirmed in this conclusion when we reflect how far-reaching in its effect upon society the new
consequences would be. The pettiest peace officer would have it in his power, through over-zeal or
indiscretions, to confer immunity upon an offender for crimes the most flagitious. A room is searched against
the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other
circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has
been trespassed, and the murder goes free. Another search, once more against the law, discloses
counterfeit money or the implements of forgery. The absence of a warrant means the freedom of the
forger. Like instances can be multiplied.

Let's focus on the present case. If the documents for which the appellant asks for his discovery prove his guilt for the
crime of treason, why does the State have to return them and free him from the accusation? Isn't this consenting and
validating the crime? Does it not constitute a judicial approval of the commission of the crimes, the violation of the
defendant's domicile committed by the members of the CIC and the treason committed by the appellant? Such a
practice would encourage crime rather than prevent its commission. In addition, obtaining the documents does not
change their probative value. If a search warrant had been issued, the documents would be acceptable
evidence. There is no constitutional or legal provision that frees the accused from all criminal responsibility because
there was no search warrant. The public vindictment demands that violators of criminal law be punished. Releasing
the guilty for the simple fact that the evidence against him has not been legally obtained is to judicially punish the
crime.

Let us consider a case: Juan who witnesses a murder, manages to snatch the dagger from the murderer, and with
which he orders him to be arrested and leads him to the presidency of the town. On the way he meets Pedro who
intercedes for the murderer; Juan, out of a misunderstood sentimentality, returns the dagger and helps the accused
to make all vestige of the crime disappear so as not to be discovered. Juan and Pedro, not only commit unworthy
acts of good citizenship, but must be punished by cover-ups (art. 19, cod. Pen. Rev.) The public will never
understand why these two individuals should be punished and, instead, a court, under the Weeks doctrine, can order
the return of the stolen document that proves the guilt of a defendant and release the defendant and the person who
stole the document.

Another case. Due to suspicious nature, a certain Jose is arrested by two policemen when he goes to the platform
where the high officials of the executive, legislative and judicial powers are gathered together with the diplomatic
representatives of friendly nations to witness the parade on the anniversary of independence; in his pocket they find a
bomb that is capable of blowing up the entire rostrum. Two other policemen, after learning of the arrest, search
Jose's house and find documents that reveal that he has received orders from a foreign organization to pulverize all
high-ranking government personnel at the first opportunity. The police officers do not have an arrest warrant, nor a
search warrant. Is it fair that on the motion of Jose in the criminal case against him, Is the court ordered the return of
the documents that prove his crime? Wouldn't anarchism be encouraged by such a practice? The court would play
the sad role of helping those who wish to undermine the foundations of our institutions. In U.S vs . Snyder, 278 Fed.,
650, the Court said: "To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens
of his crime without a warrant, would be to leave society, to a large extent , at the mercy of the shrewdest, the most
expert, and the most depraved of criminals, facilitating their escape in many instances. " And in People vs. Mayen,
205 Pac., 435, it was said: "Upon what theory can it be held that such proceeding (for the return of the articles) is an
incident of the trial, in such a sense that the ruling thereon goes up on appeal as part of the record and subject to
review by the appellate court? It seems to us rather an independent proceeding to enforce a civil right in no way
involved in the criminal case. The right of the defendant is not to exclude the incriminating documents from evidence
a civil right in no way involved in the criminal case. The right of the defendant is not to exclude the incriminating
documents from evidence, but to recover the possession of articles which were wrongfully taken from him. That right
exists entirely apart from any proposed use of the property by the State or whereas it was the invasion of his
premises and the taking of his goods that constituted the offense irrespective of what was taken or what use was
made of its; and the law having declared that the articles taken are competent and admissible evidence,
notwithstanding the unlawful search and seizure, how can the circumstance that the court erred in an independent
proceeding for the return of the property on defendant's demand add anything to or detract from the violation of the
defendant's constitutional rights in the unlawful search and seizure?

The Constitutional and the laws of the land are not considerate to aid persons charged with crime in their
efforts to conceal or sequester evidence of their iniquity. (8 Wig., 37.)

The theory of Weeks vs. US that subverts the rules of unacceptable evidence in this jurisdiction: it is contrary to the
sense of justice and to the orderly and healthy administration of justice. The orthodox doctrine is imposed by its
proven consistency over many years. It must not be abandoned if constitutional rights are to be respected and not
desecrated. The guilty must be punished, even if the evidence against them was obtained illegally. 2 And those who,
in violation of the law and the Constitution, improperly seize such proofs, must also be punished. This is how the law
rules, majestic and unimpeachable.

The request with costs is denied.

Moran, Pres., Feria, and Padilla, MM., Are satisfied.

Tuason, J., concurs in the result

Separate Opinions

YARN, J., concurring:

I concur, but I would further support the conclusion arrive at by the following additional considerations:

In April, 1945, when the CIC Detachment of the United States Army made the search at petitioner's house and effect
the seizure of his papers and effects mentioned in the majority decision, as is of general knowledge and within the
judicial notice of this Court, fighting continued in Luzon; in fact, as late as June, 1945, the cannonades and shellings
could still be clearly heard in this City of Manila, and there were still units of the Japanese Army resisting the
liberation forces. Under such circumstances, the war was continuing not only technically but actually in the island of
Luzon; and the military security and safety of the liberation forces demanded such measures as were adopted by the
CIC Detachment of the United States Army in making said search and effecting said seizure to the end that the
activities of pro-Japanese elements and their chances of effectively aiding the Japanese forces which thus still
continued to resist might be brought down to a minimum and, if possible, entirely foiled. The difference between this
case and the case in L-342, (Alvero vs. Dizon, 43 Off. Gaz., 429), is, to my mind, merely one of degree - the principle
involved is identical in both cases.

PERFECT, J., dissenting:
Petitioner stands accused of treason before the People's Court, the information against him having been filed by
Prosecutor Juan M. Ladaw on February 28, 1946.

Almost a year before, on April 4, 1945, at about 6:00 pm, petitioner was arrested by members of the Counter
Intelligence Corps of the United States Army at his residence at 199-A San Rafael St., Manila, without any warrant of
arrest, and taken to the Bilibid Prison at Muntinglupa, where he was detained.

On April 11, 1945, petitioner's wife, who transferred to their house at 3 Rosario Drive, Quezon City, was approached
by several CIC officers, headed by Lt. Olves, and ordered to accompany them to the house at San Rafael to witness
the taking of documents and things belonging to petitioner. Upon hearing from the officers that they did not have any
search warrant for the purpose, she refused to go with them, but after the officers told her that with or without her
presence they would search the house at San Rafael, Mrs. Moncado decide to accompany them.

Upon arrival at the house, Mrs. Moncado noticed that their belongings had been ransacked by American officers and
that the trunks which she had kept in the attic and in the garage when she left the house, had been ripped open and
their contents scattered on the floor. Lt. Olves informed Mrs. Moncado that they were going to take a bundle of
documents and things, which were separated from the rest of the scattered things, because they proved the guilt of
her husband. Mrs. Moncado protested in vain. No receipt was issued to her. Subsequently, after making an inventory
of their belongings at San Rafael, Mrs. Moncado found the following things missing:

( a ) Passes issued by Japanese friends for the personal safety and conduct of the petitioners;

( b ) Correspondences of the petitioner as president of the Neighborhood Association in Quezon City during
the Japanese occupation;

( c ) Correspondence of the petitioner with certain Japanese officers;

( d ) The personal file and the love letters from Mrs. Moncado to Dr. Moncado and vice versa;

( e ) Marriage certificate of Dr. Moncado with Mrs. Moncado issued at Reno, Nevada;

(f) Private correspondence and letters of Dr. Moncado to and from his Filipino Federation of America in
Hawaii and United States:

( g ) Several law books by Guevara, Albert, Francisco, Harvard Classics (complete set), books on
diplomacy, international law;

( h ) A complete collection of the 'Tribunal' compilation of the same during occupation until the last day of its
issuance;

( i ) Complete collection of American magazines, from 1940 to 1941 - Los Angeles Examiner, San Francisco
Chronicle, Los Angeles Evening Herald and newspapers edited and owned by Dr. Moncado and published
in the United States; and National Geographic Society;

(j) Personal letters of Dr. Moncado with several members of the United States Senate and Congress of the
United States including a picture of President Hoover dedicated to Dr. Moncado;

( k ) Pictures with personal dedication and autograph to Dr. and Mrs. Moncado by actors and actresses from
Hollywood, including Mary Astor, Binnie Barnes, Robert Montgomery, Clark Gable, Gary Cooper, Boris
Karloff, Wallace Beery, William and Dick Powell, Myrna Loy, Bette Davis and Ceasar Romero;

( l ) Certificate as first fighter in the Pan-American Airways and even several stickers issued by Pan
American Airways for passengers' baggage;

( m ) A promissory note of Dr. Moncado for fifty thousand pesos (P50,000) in favor of Architect Mr. Igmidio
A. Marquez of Quezon City;
 ( n ) Three (3) volumes of modern ballroom dancing by Arthur MacMurray of New York, pamphlets of
dancing obtained by Dr. Moncado while he was studying dancing at Waldorf-Astoria, New York;

( o ) two (2) volumes of rhumba, zamba and tango obtained from Mexico and Argentina by Dr. Moncado.
"(Pages 3 and 4, Petition for Certiorari and Injunction.)

On June 27, 1946, petitioner filed with the People's Court a motion praying that the return of said documents and
things be ordered. The petition was denied on July 9, 1946.

Thereupon, petitioner filed with this Supreme Court on August 10, 1946, a petition praying that the lower court's order
of July 9, 1946, be set aside, that said court be required to order the return of the documents and things in question to
petitioner, and that the prosecutor be restrained from using and presenting them as evidence at the trial of the
criminal case for treason.

Before proceeding to consider the question of law raised in this case, we should not ignore three questions of fact
raised in the answers of respondents: at to the identity of the documents and things, as to whether they were taken
from the house at San Rafael or from the house at Rosario Heights, and as to whether they were taken at the time of
petitioner's arrest or later.

The fact that the return of the documents and things were opposed to in the lower court by the prosecutor, without
disputing their identity, and that in the present proceeding the prosecutor admits to have them in his possession,
without disputing their identity or correcting any error of description made by petitioner, convinced us that in
petitioner's and respondent's minds there is no disagreement on the identity in question. There should not be any
doubt that the papers and things described and claims by petitioner are the ones in the prosecutor's possession,
otherwise, instead of objecting to the return on legal grounds, he would have alleged that such things are not in his
possession, or he does not know where they are, or that they did not exist at all.

Whether the things were taken at San Rafael or at Rosario Heights is completely immaterial. The fact is that is that
the reality and existence of things and petitioners' ownership thereof, are undisputed, and that they were taken from a
house of petitioner.

That they were taken not at the time of petitioner's arrest but much later, is indisputably proven by petitioner's and his
wife's depositions not contradicted by any other evidence.

This case offers a conclusive evidence that fundamental ideas, rules and principles are in constant need of
restatement if they are not to lose their vitality. So that they may continue radiating the sparks of their truth and virtue,
they need the repeated pounding of intense discussion, as the metal hammered on the anvil. To make them glow
with all their force, purity and splendor, they need the continuous smelting analysis and synthesis as the molten iron
in a Bessemer furnace. Otherwise, they become rusty, decayed or relegated as useless scraps in the dumping
ground of oblivion. What is worse, they are frequently replaced by their antitheses, which pose with the deceitful
dazzle of false gods, clothed in tinsel and cellophane. The risks always lurking at every turn of human life, exacts
continuous vigilance.

May the government profit from an illegality, an unconstitutional act, or even a crime to serve its aims, including the
loftiest? May justice be administered by making use of the fruits of a lawless action? If a private individual, when
profiting from the fruits of a criminal offense, is punished by law as an accessory after the fact, why should the
government or an official system of justice be allowed to ignore and mock the moral principle which condemns the
individual? Is there a moral standard for the government different from the one by which private conduct is
measured? While a private citizen is not allowed to violate any rule of decency and fair play, may the government
follow a procedure which shock the common sense of decency and fair play? If a person cannot enrich himself with
stolen property,

The above are among the elemental questions that must be answered in this case, if we are not lacking the moral
courage to face all the issues raised by the parties. Other questions concern personal liberty as affected by illegal
detention, personal security against illegal searches and seizures, judicial emancipation from colonial mental attitude.

Respondents urge us to follow the decision in Alvero vs. Dizon (L-342), which, besides having been rendered by a
second Supreme Court, whose existence is violative of the Constitution, cannot claim better merit than a servile
adherence to a wrong legal doctrine, decorated by the halo of authority of courts of a former metropolis.  There are
minds that forget that duty of thinking by ourselves and of not sticking to the teachings of foreign mentors has
become more imperative since July 4, 1946.

The seizure of the papers and effects in questions, having been made without any search warrant, was and is illegal,
and was effected in open violation of the following provisions of the Constitution:

 The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized. (Article III, section 1 [3] of the Constitution.)
 The privacy of communication and correspondence shall be inviolable except upon lawful order of
the court or when public safety and order require otherwise. (Article III, section 1 [5] of the
Constitution.)

The seizure was also in open violation of sections 3, 10, and 11 of Rule 122, which are as follows:

 SEC. 3. Requisites for issuing search warrant. - A search warrant shall not issue but upon probable
cause to be determined by the judge or justice of the peace after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched, and the persons or things to be seized.
 SEC. 10. Receipt for the property seized. - The officer seizing property under the warrant must give
a detailed receipt for the same to the person on whom or in whose possession it was found, or in
the absence of any person, must, in the presence of at least two witnesses, leave a receipt in the
place in which I have found the seized property.
 SEC. 11. Delivery of property and inventory thereof to court.  - The officer must forthwith deliver the
property to the justice of the peace or judge of the municipal court or of the Court of First Instance
which issue the warrant, together with a true inventory thereof duly verified by oath.

Even more, the illegality and unconstitutionality amounted to two criminal offenses, one of them heavily punished
with correctional prison . The offenses are punished by articles 128 and 130 of the Revised Penal Code, which reads:

4. ART. 128. Violation of domicile. - The penalty of correctional prison in its minimum period shall be

imposed upon any public officer or employee who, not being authorized by judicial order, shall enter any
dwelling against the will of the owner thereof, search papers or other effects found therein without the
previous consent of such owner, or, having surreptitiously entered said dwelling, and being required to leave
the premises, shall refuse to do so.

If the offense be committed in the nighttime, or if any papers or effects not constituting evidence of a crime
be not returned immediately after the search made by the offender, the penalty shall be correctional
prison in its medium and maximum periods.

ART. 130. Searching domicile without witnesses. - The penalty of arresto mayor in its medium and
maximum periods shall be imposed upon a public officer or employee who, in cases where a search is
proper, shall search the domicile, papers or other belongings of any persons, in the absence of the latter,
any member of his family, or in their default, without the presence of two witnesses residing in the same
locality.

The main authority upon Which is the decision Respondents rely of the Supreme Court of the United States in
Bordeau vs . MacDowell (256 US, 465), the same followed in the decision in Alvero vs. Dizon(L-342). In the Bordeau
case, certain documents were stolen from MacDowell. Upon finding that the documents contained evidence of the
fraudulent use of the mails by MacDowell, the robbers delivered them to Bordeau, in charge of the prosecution
against MacDowell. The latter filed a motion to prevent Bordeau from using the documents as evidence against
him. The federal Supreme Court denied the motion on the ground that there is no law or constitutional principle
requiring the government to surrender papers which may have come into its possession where the government has
not violated the constitutional rights of the petitioner. Two of the greatest American Justices, Justices Holmes and
Brandeis, whose dissenting opinions, written twenty years ago, are now the guiding beacons of the Supreme Court of
the United States, dissented, the latter saying:
 At the foundation of our civil liberty lies the principles which denies to government officials exceptional
position before the law, and which subjects them to the same rules of conduct that commands to the
citizen. And in the development of our liberty insistence upon procedural regularity has been a large
factor. Respect for law will not be advanced by resort, in its enforcement, to means which shock the
common man's sense of decency and fair play.

Taking aside the great intellectual, moral and judicial prestige of the two dissenters, the poignant logic and rock-
bottom sense of truth expressed by Justice Brandeis is enough to complete discredit the majority doctrine in the
Bordeau case, a doctrine that in principle and by its evil effects appears to be irretrievably immoral.

To merit respect and obedience, a government must be just. Justice cannot exist where the good is not distinguished
from the wicked. To be just, the government must be good. to be good it must stick to the principles of decency and
fair play as they are understood by a common man's sense, by universal conscience. Good ends do not justify foul
means. No one should profit from crime. Principles are not to be sacrificed by any purpose. What is bad per
se cannot be good because it is done to attain a good object. No wrong is atoned by good intention. These are some
of the maxims through which the common sense of decency and fair play is manifested.

Reason is a fundamental characteristic of man. there is no greater miracle than when its first sparks scintillated in the
mind of a child. What before had only the vegetative life of a plant or the animal life of a mollusk or frog, suddenly
begins to wield the prodigious power of understanding and intelligent grasping of the meaning and relations of the
things with which he is in direct or remote contact though his senses. The power of understanding brings forth the
freedom of choice. This freedom develops the faculty of discrimination between good and evil. That discrimination is
further developed into a sense of justice.

While the advent of the astounding miracle of reason has so much kindled the pride of men, to the extent of
symbolizing it wit the fire stolen by Prometeus from the heavens, and of proclaiming himself as the king of the
creation, man had taken millennia of struggles in order to develop the basic ideas which insure his survival and allow
him to enjoy the greatest measure of well-being and happiness. He soon discovered that society is an indispensable
condition to attain his ends. As a consequence, he fought against all anti-social ideas and conduct and had to
discover or invent and then develop the principles and qualities of sociability. The struggle has been long and it will
have to continue until the end of the centuries. It is the same eternal struggle between truth and error, between right
and wrong.

While man, in the multifarious ensemble of the universe, seems to be the lone and exclusive holder of the divine fire
of reason, he had so far failed to find the key to always correct thinking. The solution to the failure of reason is riddle
yet to be unlocked. Man is easily deceived into committing blunders or led into the most absurd aberrations. The
mysterious genes which keep uninterrupted the chain of heredity, while allowing the transmission of the best qualities
and characteristics, seems to lack the power of checking and staving off the tendencies of atavism. In the moral
ctetology, either kind of characteristics and qualities may be originated and developed. The inconsistency of
respondents is thus explainable. While they would raise their brows at the mere insinuation that a private individual
may justifiably profit by the result s of fruits of a criminal offense, they would not measure the government with the
same moral standard. That the inconsistency may be explained by its genesis is no ground why we should surrender
to it. To set two moral standard, a strict one for private individuals and another vitiated with laxity for the government,
is to throw society into the abyss of legal ataxia. Anarchy and chaos will become inevitable. Such a double standard
will necessarily be nomoctonous. a strict one for private individuals and another vitiated with laxity for the
government, is to throw society into the abyss of legal ataxia. Anarchy and chaos will become inevitable. Such a
double standard will necessarily be nomoctonous. a strict one for private individuals and another vitiated with laxity
for the government, is to throw society into the abyss of legal ataxia. Anarchy and chaos will become inevitable. Such
a double standard will necessarily be nomoctonous.

The idea of double moral standard is incompatible with the temper and idiosyncracy of social order established by our
constitution, and is repugnant to its provisions. all government authority emanates for the people in whom sovereignty
resides. The Filipino people ordained and promulgated the constitution "in order to established a government that
shall embody their ideals." Among these ideals are justice, democracy, the promotion of social justice equal
protection of the laws to everybody. Such ideals are trampled down by the adoption of the double moral standard
which can be taken its place in the ideology of the supporters of absolute monarchies. Their is the maxim that "the
king can do no wrong." The iniquities and misery havocked by such maxim would need hundreds or thousands of
volumes to record them. The infamy of Japanese occupation gave our people the bitter taste of the operation of the
double moral standard. It is the antithesis of the golden rule. It would place government in a category wholly apart
from humanity, notwithstanding its being a human institution, - an unredeemable absurdity.
From "Brandeis, A Free Man's Life" by Alpheus Thomas Mason (pp. 568 and 569), we quote an analogous legal
situation:

"In the famous wire-tapping case Chief Justice Taft, delivering the opinion, overruled the defendants' claim that the
evidence obtained when government agents tapped their telephone wires violated either unreasonable searches and
seizures or the constitutional protection against self-incrimination. No tapped wires entered their homes and offices,
Taft reasoned, so there was neither search nor seizure.

The progress of science in furnishing the government with means of espionage is not likely to stop with wire-
tapping. Ways may some day be developed by which the government, without removing papers from secret drawers,
can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the
home. . . .

"'Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by example.
Crime is contagious. If government becomes a law-breaker, it breeds contempt for law; it invites every man to
become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies
the means - to declare that the government may commit crimes in order to secure the conviction of a private criminal
- would bring terrible retribution. .

"'The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness,' he
emphasized." They recognized the significance of man's spiritual nature, of his feelings and of his intellect. they knew
that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect
Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the
government, the right to be let alone - the most comprehensive of right and the right most valued by civilized men. . . .

"'Experience should teach us to be most on our guard to protect liberty when the government's purpose are
beneficent. Me born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest
dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.
'"(Olmstead vs. US, 277 [US] 438, [1928], pp. 473-474, 478, 479, 485.)

The argument that goods and personal properties illegally taken, stolen, or snatched from the owner of possessor
without a duly issued search warrant can be retained by the prosecution for use as evidence in a criminal case
instituted is initiated by an original and basic flaw. The argument rests on the assume existence or commission of a
crime as its minor premise. but, under the orderly processes of law, the assumption has yet to be proved, and it is
impossible to be proved before it can be of any use to support and clinch the argument. The prosecution is called
upon to make the assumption that the goods and properties in question are evidence of a crime.  To be valid, the
assumption has to presuppose the commission or existence of the crime. That presupposition, in order to be
valid, must in turn stand on an authoritative pronouncement which can only be made in a final and executory decision
rendered by a court of justice. The prosecution cannot make a conclusive pronouncement, as to the existence or
commission of a crime, the basic fact which, under the argument, will entitled the prosecution to retain and use the
goods and properties in question. The argument assumes a fact the existence of which still remains to be proved and
continues to be enveloped in the mists of the realm of uncertainties, which fact may lead to the disputed right of the
prosecution to retain the goods and properties illegally seized as essential evidence of the crime. The line of
reasoning the build up the argument can be restated in more abstract terms as follows:  justify the means by their
necessity to attain an end by starting from the premise that the end was accomplished. Such a reasoning process is
fundamentally subversive to logic and is incompatible with the natural workings of the human mind.

The rules governing the phenomena of diffusion and osmosis, of permeability and isotonic equilibrium, of assimilation
and waste dislodgment, of development and reproduction, like all laws of life, are uniform and universal. Whether in
the nuclear chromatin or the cytosome of a single protoplasmic cell of amoeba or in the sinews of the heaviest
marsupial, whether in the formation of the smallest bud or in the formation of the smallest bud or in the display of
color and aroma by the most beautiful flower, whether in the development of a frog or in the attainment of the perfect
curves and velvety skin of a lovely girl, the uniformity and universality of biological laws are manifested
unrelentlessly. Any disregard of them is fatal, and will lead to irretrievable disaster and destruction. Moral standards
are the laws of social life. In a different plane and order, they are but biological laws, governing the vital processes
and functions of social organism. They are and should be uniform and universal and no single unit or organ of human
society can disregard them or any one of them without alluring catastrophic consequences.
Our decision is to grant all the prayers of the petition, and it was so ever since February 24, 1947, when this Court
took the vote for the disposal of this case. In stating this fact we do not want to put any blame on the distinguished
member who penned the decision now to be promulgated. In justice to him, we may record that the drafting of the
majority decision was transferred and entrusted to him many months after a final vote had been taken on the case,
and it did not take him more than a month to have ready the majority opinion . In exposing the fact we mean only to
emphasize the crying need of changing a situation or a system of procedure that permits the promulgation of our
decisions one year or more after a case has been submitted to us for final action.

BENGZON, J., dissenting:

Sanctity of the home is a by-word anywhere, anytime. The house of man was the first house of God.

In Rome the citizen's dwelling was a safe asylum. Invasion thereof was anathema. Down through the centuries
respect for men's abodes has remained a heritage of civilization.

In England, the poorest man could in his cottage, defy all the forces of the Crown. "It may be frail; it is roof may
shake; the wind may blow through it, the storm may enter; the rain may be enter; but the King England may not enter;
all his forces dare not cross the threshold of the ruined tenement . " His home was indeed his castle.

And in the United States: "The right of the citizen to occupy and enjoy his home, however mean or humble, free from
arbitrary invasion and search, has for centuries been protected with the most solicitous care.....

"The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by
the ordinary private citizen to break in upon the privacy of a home and subject its occupants to the indignity of a
search for the evidence of crime, without a legal warrant procured for that purpose. No amount of incriminating
evidence, whatever its source, will supply the place of such warrant. At the closed door of the home, be it place or
hovel, even bloodhounds must wait till the law, by authoritative process, bids it open.... "(McLurg vs. Brenton, 123
Iowa, 368, quoted in 20 Phil., 473.)

Logical culmination and practical application of the above principles embodied in our Organic Laws, is the ruling we
announced in Alvarez vs.  Court of First Instance of Tayabas , 64 Phil., 33, that documents unlawfully seized in a
man's home must be returned - irrespective of their evidentiary value - provided seasonable motions are
submitted. We followed the Federal rule in Boyd vs . US, 116 US, 616 and many others. We had said before that "it is
better oftentimes that crimes should be unpunished than that the citizen should be liable to have his premises
invaded, his desk broken open, his private books, letters, and papers exposed to prying curiosity, ... under the
direction of a mere ministerial officer "... insensitive perhaps to the rights and feelings of others. (USvs . De los Reyes
and Esguerra, 20 Phil., 472, citing Cooley, Constitutional Limitations.)

In the Alvarez decision we reflected that "of all rights of a citizen few are of greater importance or more essential to
his peace and happiness than the right of personal security, and that involves the exemption of his private affairs,
books, and papers from the inspection and scrutiny of others, "and while the power to search and seize is necessary
to public welfare, still it mist be exercised without transgressing the constitutional rights of citizens, because the
enforcement of statutes is never sufficiently important to justify violation of the basic principles of government. It is
agreed that the fundamental rights of the individual guaranteed by the Constitution, must be given such a liberal
construction of strict construction as will be in his favor, to prevent gradual encroachment or stealthy depreciation of
such fundamental rights. (Statevs . Custer County, 198 Pac., 362; State vs . McDaniel, 231 Pac., 965; 237 Pac.,
373.)

Our constitution in its Bill of Rights decrees that "the right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be
seized. (Constitution, Article III, section 1 [3]. )

This is an improvement over the provisions of the Jones Law regarding warrants and seizures. It was designed to
make our Constitution "conform entirely" to the Fourth Amendment of the US Constitution. (Aruego, Framing of the
Philippine Constitution, Vol., II, p. 1043.)
The split between several State Supreme Courts on one side and the Federal Supreme Court on the other, about the
admissibility of evidence obtained through illegal searches and seizures, was familiar to this Court (People vs. Carlos,
47 Phil., 626, 630) before it voted to adopt the Federal doctrine in Alvarez vs. Court of First Instance of Tayabas,
supra .

This last doctrine, applied in several subsequent cases (People vs. Sy Juco, 64 Phil., 667; Rodriguez vs. Villamil, 37
Off. Gaz., 2416) was probably known to the Constitutional Convention that, the addition, made the Constitutional
mandate on the point more complete and explicit, copying exactly the wording of the Federal Constitution, a
circumstance Which, coupled with the citation of Boyd vs . US, showed adherence to the Federal doctrine that debars
evidence obtained by illegal search or unlawful seizure.

It is significant That the Convention Readily ADOPTED the recommendation of the Committee on Bill of Rights after
Chairman HAD ITS spoken, explaining the meaning and extent of the provision on searches and seizures and the
United States Invoking Specifically decisions of Boyd vs . US, 116 US, 616 and Gould v . US, 225 US, 298, which the
majority of this Court would now discard and overrule. (Aruego op. Cit . Vol. I, P. 160; Vol., II, pp. 1043, 1044.)

Therefore, it is submitted, with tall due respect, that we are not at liberty now to select between two conflicting
theories. The selection has been made by the Constitutional Convention when it impliedly chose to abide by the
Federal decisions, upholding to the limit the inviolability of man's domicile. Home! The tie that binds, the affection that
gives life, the pause that soothes, all nestle there in an atmosphere of security. Remove that security and you destroy
the home.

Under this new ruling the "King's forces" may now "cross the threshold of the ruined tenement" seize the skeleton
from the family closet and rattle it in public, in court, to the vexation or shame of the unhappy occupants. That those
forces may be jailed for trespass, is little consolation. That those forces may be pardoned by the King, their master,
suggests fearful possibilities. The sanctuary, the castle, are gone with the wind.

An opinion of Mr. Justice Cardozo in the Court of Appeals of New York is cited as authority for the majority view
(People vs. Defore, 150 NE, 585). Yet it is markworthy that, in New York, protection against unreasonable searches
and seizures is not promised by the Constitution of the State but by a mere statute. (Civil Rights of Law.) (See the
same case, and 56 CJ, p. 1156.) New York is the only state that denies this privilege the status of a constitutional
prerogative. ( Supra .) Hence the precedent is obviously inconclusive.

Moreover, admitting, for purposes of argument only, that the Alvarez decision is legally erroneous, I maintain that the
new doctrine should apply to future cases - not to herein petitioner who had relied on it. In Santiago and Flores
vs.  Valenzuela , No L-670, April 30, 1947 (44 Off. Gaz., 3291, 3296) I argued for that proposition as follows:

. . . The reserved right to upset previous decisions is likewise qualified by the proposition that such upsetting
shall have prospective - not retroactive - effect.

In Douglass vs . Pike Country, 101 US 677 at p. 687, it was declared, "The true rule (of stare decisis ) is to
give a change of judicial construction ... the same effect in its operation" ... as to "a legislative
amendment, ie ., Make it prospective but not retroactive. "

And in Great Northern R. Co. v . Sunburst Oil & Ref. Co., 287 US, 358, the Supreme Court, through Mr.
Justice Cardozo, said:

"A state in defining the limits of adherence to precedent may make a choice for itself between the principle
of forward operation and that of relation backward. It may say that decisions of its highest court, though later
overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly
(cf. Tidal Oil Co. vs. Flanagan, 263 US, 444; 68 Law. ed., 382; 44 S Ct., 197, supra ), that it must give them
that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or
hardship will thereby be averted Gelpcke vs. Dubuque, 1 Wall., 175; 17 Law. ed., 25; Douglass vs. Pike
Country , 101 U. S 677, 687; 25 Law. Ed., 968, 971; Loeb vs.. Columbia Twp. 179 US, 472, 492; 45 Law,
ed., 280, 290, 21 S. Ct., 174, etc. "

This view is not unanimous, I know. However, inasmuch as one of the principal arguments of the opposing
school of thought is that it makes the overruling decision a mere "declaratory judgment", and since that
 objection is untenable in this jurisdiction where declaratory relief is permitted (Rule 66), the view herein
advocated - future operation only - future operation only - should all the more be acceptable to our system of
jurisprudence. More about this in the future, if I should happen to agree to an overruling of previous
decisions and the question should hinge on its backward or forward application. For the present, enough to
note some of the abundant literature on the point. 1

BRIONES, M., dissident:

I disagree with the presentation. I consider that the request presented by the appellant should be granted. I believe
that in this jurisdiction we must adhere to the jurisprudence established in the Weeks v . US that is cited in the
majority decision.

If in a democracy like the North American - already mature and well solidified, strengthened by a centuries-long
tradition of respect for individual and civic freedoms and by the equanimous and serene temperament of a race as
admirable as the Anglo-Saxon - it has been considered necessary to guarantee the The privileges of the citizen under
the armor of such a doctrine, with all the greater reason we must have and ensure those guarantees in a democracy
like ours, young man, which is just making the initial steps on the road to political independence, and where
demagogy and anarchy and the dangerous tendencies to the establishment of liberty at such a hard-earned cost.

Paras, M., agree.
 5. G.R. No. L-19550             June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,

vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his capacity as
Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I.
PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN,
Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES
CALUAG, Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal
Court of Quezon City, respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro, Assistant Solicitor
General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for respondents.

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin1 — hereinafter referred to as Respondents-
Prosecutors — several judges2 — hereinafter referred to as Respondents-Judges — issued, on different dates, 3 a
total of 42 search warrants against petitioners herein4 and/or the corporations of which they were officers,5 directed to
the any peace officer, to search the persons above-named and/or the premises of their offices, warehouses and/or
residences, and to seize and take possession of the following personal property to wit:

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credit
journals, typewriters, and other documents and/or papers showing all business transactions including
disbursements receipts, balance sheets and profit and loss statements and Bobbins (cigarette wrappers).

as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or intended to be
used as the means of committing the offense," which is described in the applications adverted to above as "violation
of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code."

Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and the Rules of
Court — because, inter alia: (1) they do not describe with particularity the documents, books and things to be seized;
(2) cash money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to fish evidence
against the aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures were
made in an illegal manner; and (5) the documents, papers and cash money seized were not delivered to the courts
that issued the warrants, to be disposed of in accordance with law — on March 20, 1962, said petitioners filed with
the Supreme Court this original action for certiorari, prohibition, mandamus  and injunction, and prayed that, pending
final disposition of the present case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors,
their agents and /or representatives from using the effects seized as aforementioned or any copies thereof, in the
deportation cases already adverted to, and that, in due course, thereafter, decision be rendered quashing the
contested search warrants and declaring the same null and void, and commanding the respondents, their agents or
representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of Court, the
documents, papers, things and cash moneys seized or confiscated under the search warrants in question.

In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid and have been
issued in accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners' consent; and (3)
that, in any event, the effects seized are admissible in evidence against herein petitioners, regardless of the alleged
illegality of the aforementioned searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition. However, by
resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the papers, documents and things
seized from the offices of the corporations above mentioned are concerned; but, the injunction was maintained as
regards the papers, documents and things found and seized in the residences of petitioners herein.7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in question may be split
into two (2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations, and
(b) those found and seized in the residences of petitioners herein.

As regards the first group, we hold that petitioners herein have no cause of action to attack the legality of the
contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have
their respective personalities, separate and distinct from the personality of herein petitioners, regardless of the
amount of shares of stock or of the interest of each of them in said corporations, and whatever the offices they hold
therein may be.8 Indeed, it is well settled that the legality of a seizure can be contested only  by the party whose rights
have been impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal  and cannot
be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the use in evidence against
them of the documents, papers and things seized from the offices and premises of the corporations adverted to
above, since the right to object to the admission of said papers in evidence belongs exclusively to the corporations, to
whom the seized effects belong, and may not be invoked by the corporate officers in proceedings against them in
their individual capacity. 11 Indeed, it has been held:

. . . that the Government's action in gaining possession of papers belonging to the corporation  did not relate
to nor did it affect the personal  defendants. If these papers were unlawfully seized and thereby the
constitutional rights of or any one were invaded, they were the rights of the corporation and not the rights of
the other defendants. Next, it is clear that a question of the lawfulness of a seizure can be raised  only by
one whose rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional
rights of defendants whose property had not been seized or the privacy of whose homes had not been
disturbed; nor could they claim for themselves the benefits of the Fourth Amendment, when its violation, if
any, was with reference to the rights of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It
follows, therefore, that the question of the admissibility of the evidence based on an alleged unlawful search
and seizure does not  extend to the personal defendants but embraces only the corporation  whose property
was taken. . . . (A Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis
supplied.)

With respect to the documents, papers and things seized in the residences of petitioners herein, the aforementioned
resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued by this Court, 12 thereby, in
effect, restraining herein Respondents-Prosecutors from using them in evidence against petitioners herein.

In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1)
whether the search warrants in question, and the searches and seizures made under the authority thereof, are valid
or not, and (2) if the answer to the preceding question is in the negative, whether said documents, papers and things
may be used in evidence against petitioners herein.1äwphï1.ñët

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that
accordingly, the seizures effected upon the authority there of are null and void. In this connection, the
Constitution 13 provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons or things to be seized.

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue
but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the
warrant shall particularly  describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon
applications stating that the natural and juridical person therein named had committed a "violation of Central Ban
Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words,
no specific  offense had been alleged in said applications. The averments thereof with respect to the offense
committed were abstract. As a consequence, it was impossible  for the judges who issued the warrants to have found
the existence of probable cause, for the same presupposes the introduction of competent proof that the party against
whom it is sought has performed particular acts, or committed specific omissions, violating a given provision of our
criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by
herein petitioners. It would be the legal heresy, of the highest order, to convict anybody of a "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code," — as alleged in the
aforementioned applications — without reference to any determinate provision of said laws or

To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights
guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and
correspondence at the mercy of the whims caprice or passion of peace officers. This is precisely the evil sought to be
remedied by the constitutional provision above quoted — to outlaw the so-called general warrants. It is not difficult to
imagine what would happen, in times of keen political strife, when the party in power feels that the minority is likely to
wrest it, even though by legal means.

Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this
Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart,
under the Revised Rules of Court 15 that "a search warrant shall not issue but upon probable cause in connection with
one specific offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no
search warrant shall issue for more than one specific offense."

The grave violation of the Constitution made in the application for the contested search warrants was compounded by
the description therein made of the effects to be searched for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit
journals, typewriters, and other documents and/or papers showing all business transactions including
disbursement receipts, balance sheets and related profit and loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of
petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of
all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening
the explicit command of our Bill of Rights — that the things to be seized be particularly described — as well as
tending to defeat its major objective: the elimination of general warrants.

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even if the searches
and seizures under consideration were unconstitutional, the documents, papers and things thus seized are
admissible in evidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the
opinion that the position taken in the Moncado case must be abandoned. Said position was in line with the American
common law rule, that the criminal should not be allowed to go free merely "because the constable has
blundered," 16 upon the theory that the constitutional prohibition against unreasonable searches and seizures is
protected by means other than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for
damages against the searching officer, against the party who procured the issuance of the search warrant and
against those assisting in the execution of an illegal search, their criminal punishment, resistance, without liability to
an unlawful seizure, and such other legal remedies as may be provided by other laws.

However, most common law jurisdictions have already given up this approach and eventually adopted the
exclusionary rule, realizing that this is the only practical means of enforcing the constitutional injunction  against
unreasonable searches and seizures. In the language of Judge Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully
acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times
the action of trespass against the offending official may have been protection enough; but that is true no
longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by
their wrong will that wrong be repressed.18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
 If letters and private documents can thus be seized and held and used in evidence against a citizen accused
of an offense, the protection of the 4th Amendment, declaring his rights to be secure against such searches
and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from
the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as
they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and
suffering which have resulted in their embodiment in the fundamental law of the land.19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal Court. 20 After
reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.):

. . . Today we once again examine the Wolf's constitutional documentation of the right of privacy free from
unreasonable state intrusion, and after its dozen years on our books, are led by it to close the only
courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic
right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that
all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority,
inadmissible in a State.

Since the Fourth Amendment's right of privacy has been declared enforceable against the States through
the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion
as it used against the Federal Government. Were it otherwise, then just as without the Weeks rule the
assurance against unreasonable federal searches and seizures would be "a form of words," valueless and
underserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the
freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not to permit this Court's high regard
as a freedom  "implicit in the concept of ordered liberty." At the time that the Court held in Wolf that the
amendment was applicable to the States through the Due Process Clause, the cases of this Court as we
have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of
the evidence seized in violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to
when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of
the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd,
Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of due process to all
constitutionally unreasonable searches — state or federal — it was logically and constitutionally necessarily
that the exclusion doctrine — an essential part of the right to privacy — be also insisted upon as an essential
ingredient of the right newly recognized by the Wolf Case. In short, the admission of the new constitutional
Right by Wolf could not tolerate denial of its most important constitutional privilege, namely, the exclusion of
the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold
otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court
itself recognized that the purpose of the exclusionary rule to "is to deter — to compel respect for the
constitutional guaranty in the only effectively available way — by removing the incentive to disregard it" . . . .

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional
restraints on which the liberties of the people rest. Having once recognized that the right to privacy
embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure
against rude invasions of privacy by state officers is, therefore constitutional in origin, we can no longer
permit that right to remain an empty promise. Because it is enforceable in the same manner and to like
effect as other basic rights secured by its Due Process Clause, we can no longer permit it to be revocable at
the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.
Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution
guarantees him to the police officer no less than that to which honest law enforcement is entitled, and, to the
courts, that judicial integrity so necessary in the true administration of justice. (emphasis ours.)

Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction
against unreasonable searches and seizures. To be sure, if the applicant for a search warrant has competent
evidence to establish probable cause of the commission of a given crime by the party against whom the warrant is
intended, then there is no reason why the applicant should not comply with the requirements of the fundamental law.
Upon the other hand, if he has no such competent evidence, then it is not possible for the Judge to find that there is
probable cause, and, hence, no justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing  evidence of the commission of a crime. But, then, this fishing
expedition is indicative of the absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make
unreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration,
overlooks the fact that violations thereof are, in general, committed By agents of the party in power, for, certainly,
those belonging to the minority could not possibly abuse a power they do not have. Regardless of the handicap under
which the minority usually — but, understandably — finds itself in prosecuting agents of the majority, one must not
lose sight of the fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered
down by the pardoning power of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962, petitioners
allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436,
Colorado Street, and Room No. 304 of the Army-Navy Club, should be included among the premises considered in
said Resolution as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl
Beck, respectively, and that, furthermore, the records, papers and other effects seized in the offices of the
corporations above referred to include personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under the latest rulings of the federal courts
of federal courts of the United States. 22

We note, however, that petitioners' theory, regarding their alleged possession of and control over the aforementioned
records, papers and effects, and the alleged "personal" nature thereof, has Been Advanced, not in their petition or
amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962.
In other words, said theory would appear to be readjustment of that followed in said petitions, to suit the approach
intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or copies of
alleged affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners herein.

Upon the other hand, we are not satisfied that the allegations of said petitions said motion for reconsideration, and
the contents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficiently
established the facts or conditions contemplated in the cases relied upon by the petitioners; to warrant application of
the views therein expressed, should we agree thereto. At any rate, we do not deem it necessary to express our
opinion thereon, it being best to leave the matter open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the
warrants for the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962,
are null and void; that the searches and seizures therein made are illegal; that the writ of preliminary injunction
heretofore issued, in connection with the documents, papers and other effects thus seized in said residences of
herein petitioners is hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers
and other effects so seized in the aforementioned residences are concerned; that the aforementioned motion for
Reconsideration and Amendment should be, as it is hereby, denied; and that the petition herein is dismissed and the
writs prayed for denied, as regards the documents, papers and other effects seized in the twenty-nine (29) places,
offices and other premises enumerated in the same Resolution, without special pronouncement as to costs.

It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

CASTRO, J., concurring and dissenting:

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of the deliberations
of the Court on this case, I gather the following distinct conclusions:

1. All  the search warrants served by the National Bureau of Investigation in this case are general warrants
and are therefore proscribed by, and in violation of, paragraph 3 of section 1 of Article III (Bill of Rights) of
the Constitution;

2. All the searches and seizures conducted under the authority of the said search warrants were
consequently illegal;
 3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be, and is declared,
abandoned;

4. The search warrants served at the three residences of the petitioners are expressly  declared null and void
the searches and seizures therein made are expressly declared illegal; and the writ of preliminary injunction
heretofore issued against the use of the documents, papers and effect seized in the said residences is made
permanent; and

5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that they have legal
standing to move for the suppression of the documents, papers and effects seized in the places other than
the three residences adverted to above, the opinion written by the Chief
Justice refrains from expressly declaring as null and void the such warrants served at such other places and
as illegal the searches and seizures made therein, and leaves "the matter open for determination in
appropriate cases in the future."

It is precisely the position taken by the Chief Justice summarized in the immediately preceding paragraph (numbered
5) with which I am not in accord.

I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the search warrants
served at places other than the three residences, and the illegibility of the searches and seizures conducted under
the authority thereof. In my view even the exacerbating passions and prejudices inordinately generated by the
environmental political and moral developments of this case should not deter this Court from forthrightly laying down
the law not only for this case but as well for future cases and future generations. All  the search warrants, without
exception, in this case are admittedly general, blanket and roving warrants and are therefore admittedly and
indisputably outlawed by the Constitution; and the searches and seizures made were therefore unlawful. That the
petitioners, let us assume in gratia argumente, have no legal standing to ask for the suppression of the papers, things
and effects seized from places other than their residences, to my mind, cannot in any manner affect, alter or
otherwise modify the intrinsic nullity of the search warrants and the intrinsic illegality of the searches and seizures
made thereunder. Whether or not the petitioners possess legal standing the said warrants are void and remain void,
and the searches and seizures were illegal and remain illegal. No inference can be drawn from the words of the
Constitution that "legal standing" or the lack of it is a determinant of the nullity or validity of a search warrant or of the
lawfulness or illegality of a search or seizure.

On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this Court the
petitioners have the requisite legal standing to move for the suppression and return of the documents, papers and
effects that were seized from places other than their family residences.

Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth Amendment to
the United States Constitution. In the many years of judicial construction and interpretation of the said constitutional
provision, our courts have invariably regarded as doctrinal the pronouncement made on the Fourth Amendment by
federal courts, especially the Federal Supreme Court and the Federal Circuit Courts of Appeals.

The U.S. doctrines and pertinent cases on standing to move for the suppression or return of documents, papers and
effects which are the fruits of an unlawful search and seizure, may be summarized as follows; (a) ownership of
documents, papers and effects gives "standing;" (b) ownership and/or control or possession — actual or constructive
— of premises searched gives "standing"; and (c) the "aggrieved person" doctrine where the search warrant and the
sworn application for search warrant are "primarily" directed solely and exclusively against the "aggrieved person,"
gives "standing."

An examination of the search warrants in this case will readily show that, excepting three, all were directed against
the petitioners personally. In some of them, the petitioners were named personally, followed by the designation, "the
President and/or General Manager" of the particular corporation. The three warrants excepted named three corporate
defendants. But the "office/house/warehouse/premises" mentioned in the said three warrants were also the same
"office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in all the other
search warrants directed against the petitioners and/or "the President and/or General Manager" of the particular
corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The searches and seizures were to be made, and
were actually made, in the "office/house/warehouse/premises" owned by or under the control of the petitioners.

Ownership of matters seized gives  "standing."

Ownership of the properties seized alone entitles the petitioners to bring a motion to return and suppress, and gives
them standing as persons aggrieved by an unlawful search and seizure regardless of their location at the time of
seizure. Jones vs. United States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the
defendant); Henzel vs. United States, 296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal and corporate papers of
corporation of which the defendant was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in
an apartment not belonging to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books
seized from the defendant's sister but belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d 680, 683
(10th Cir. 1962) (papers seized in desk neither owned by nor in exclusive possession of the defendant).

In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that under the
constitutional provision against unlawful searches and seizures, a person places himself or his property within a
constitutionally protected area, be it his home or his office, his hotel room or his automobile:

Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth
Amendment protection. What the Fourth Amendment protects is the security a man relies upon when
he places himself or his property within a constitutionally protected area, be it his home or his office, his
hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he
puts some thing in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be
secure from an unreasonable search or an unreasonable seizure. So it was that the Fourth Amendment
could not tolerate the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private
papers in Gouled, or the surreptitious electronic surveilance in Silverman. Countless other cases which have
come to this Court over the years have involved a myriad of differing factual contexts in which the
protections of the Fourth Amendment have been appropriately invoked. No doubt, the future will bring
countless others. By nothing we say here do we either foresee or foreclose factual situations to which the
Fourth Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966). See also U.S.
vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis supplied).

Control of premises searched gives "standing."

Independent of ownership or other personal interest in the records and documents seized, the petitioners have
standing to move for return and suppression by virtue of their proprietary or leasehold interest in many of the
premises searched. These proprietary and leasehold interests have been sufficiently set forth in their motion for
reconsideration and need not be recounted here, except to emphasize that the petitioners paid rent, directly or
indirectly, for practically all the premises searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club;
Premises 2008, Dewey Boulevard; 1436 Colorado Street); maintained personal offices within the corporate offices
(IBMC, USTC); had made improvements or furnished such offices; or had paid for the filing cabinets in which the
papers were stored (Room 204, Army & Navy Club); and individually, or through their respective spouses, owned the
controlling stock of the corporations involved. The petitioners' proprietary interest in most, if not all, of the premises
searched therefore independently gives them standing to move for the return and suppression of the books, papers
and affects seized therefrom.

In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the interest in the
searched premises necessary to maintain a motion to suppress. After reviewing what it considered to be the unduly
technical standard of the then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266):

We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that
it is unnecessarily and ill-advised to import into the law surrounding the constitutional right to be free from
unreasonable searches and seizures subtle distinctions, developed and refined by the common law in
evolving the body of private property law which, more than almost any other branch of law, has been shaped
by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration
has led to the discarding of those distinctions in the homeland of the common law. See Occupiers' Liability
Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions
such as those between "lessee", "licensee," "invitee," "guest," often only of gossamer strength, ought not be
determinative in fashioning procedures ultimately referable to constitutional safeguards. See also Chapman
vs. United States, 354 U.S. 610, 616-17 (1961).

It has never been held that a person with requisite interest in the premises searched must own the property seized in
order to have standing in a motion to return and suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), a
Bookkeeper for several corporations from whose apartment the corporate records were seized successfully moved
for their return. In United States vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the
corporation's president successfully moved for the return and suppression is to him of both personal and corporate
documents seized from his home during the course of an illegal search:

The lawful possession by Antonelli of documents and property, "either his own or the corporation's  was
entitled to protection against unreasonable search and seizure. Under the circumstances in the case at bar,
the search and seizure were unreasonable and unlawful. The motion for the return of seized article and the
suppression of the evidence so obtained should be granted. (Emphasis supplied).

Time was when only a person who had property in interest in either the place searched or the articles seize had the
necessary standing to invoke the protection of the exclusionary rule. But in MacDonald vs. Unite States, 335 U.S. 461
(1948), Justice Robert Jackson joined by Justice Felix Frankfurter, advanced the view that "even a guest may expect
the shelter of the rooftree he is under against criminal intrusion." This view finally became the official view of the U.S.
Supreme Court and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960,
in Jones vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere guest in
the apartment unlawfully searched but the Court nonetheless declared that the exclusionary rule protected him as
well. The concept of "person aggrieved by an unlawful search and seizure" was enlarged to include "anyone
legitimately on premise where the search occurs."

Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit held that the
defendant organizer, sole stockholder and president of a corporation had standing in a mail fraud prosecution against
him to demand the return and suppression of corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th
Cir. 1961), supra. The court conclude that the defendant had standing on two independent grounds: First — he had a
sufficient interest in the property seized, and second — he had an adequate interest in the premises searched (just
like in the case at bar). A postal inspector had unlawfully searched the corporation' premises and had seized most of
the corporation's book and records. Looking to Jones, the court observed:

Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by an unlawful
search and seizure." It tells us that appellant should not have been precluded from objecting to the Postal
Inspector's search and seizure of the corporation's books and records merely because the appellant did not
show ownership or possession of the books and records or a substantial possessory interest in the invade
premises . . . (Henzel vs. United States, 296 F. 2d at 651). .

Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962). In Villano, police officers
seized two notebooks from a desk in the defendant's place of employment; the defendant did not claim ownership of
either; he asserted that several employees (including himself) used the notebooks. The Court held that the employee
had a protected interest and that there also was an invasion of privacy. Both Henzel and Villano considered also the
fact that the search and seizure were "directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at
682; Villano vs. United States, 310 F. 2d at 683.

In a case in which an attorney closed his law office, placed his files in storage and went to Puerto Rico, the Court of
Appeals for the Eighth Circuit recognized his standing to move to quash as unreasonable search and seizure under
the Fourth Amendment of the U.S. Constitution a grand jury subpoena duces tecum  directed to the custodian of his
files. The Government contended that the petitioner had no standing because the books and papers were physically
in the possession of the custodian, and because the subpoena was directed against the custodian. The court rejected
the contention, holding that

Schwimmer legally had such possession, control and unrelinquished personal rights in the books and
papers as not to enable the question of unreasonable search and seizure to be escaped through the mere
procedural device of compelling a third-party naked possessor to produce and deliver them. Schwimmer vs.
United States, 232 F. 2d 855, 861 (8th Cir. 1956).

Aggrieved person doctrine where the search warrant s primarily directed against said person gives "standing."

The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191 (1965, U.S.D.C.
S.D.N.Y.). The defendant had stored with an attorney certain files and papers, which attorney, by the name of Dunn,
was not, at the time of the seizing of the records, Birrell's attorney. * Dunn, in turn, had stored most of the records at
his home in the country and on a farm which, according to Dunn's affidavit, was under his (Dunn's) "control and
management." The papers turned out to be private, personal and business papers together with corporate books and
records of certain unnamed corporations in which Birrell did not even claim ownership. (All of these type records were
seized in the case at bar). Nevertheless, the search in Birrell was held invalid by the court which held that even
though Birrell did not own the premises where the records were stored, he had "standing" to move for the return
of  all the papers and properties seized. The court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co.,
53 F. Supp. 870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra;  and Schwimmer vs. U.S., supra, pointed out that

It is overwhelmingly established that the searches here in question were directed solely and exclusively
against Birrell. The only person suggested in the papers as having violated the law was Birrell. The first
search warrant described the records as having been used "in committing a violation of Title 18, United
States Code, Section 1341, by the use of the mails by one Lowell M. Birrell, . . ." The second search warrant
was captioned: "United States of America vs. Lowell M. Birrell. (p. 198)

Possession (actual or constructive), no less than ownership, gives standing to move to suppress. Such was
the rule even before Jones. (p. 199)

If, as thus indicated Birrell had at least constructive possession of the records stored with Dunn, it matters
not whether he had any interest in the premises searched. See also Jeffers v. United States, 88 U.S. Appl.
D.C. 58, 187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951).

The ruling in the Birrell  case was reaffirmed on motion for reargument; the United States did not appeal from this
decision. The factual situation in Birrell is strikingly similar to the case of the present petitioners; as in Birrell, many
personal and corporate papers were seized from premises not petitioners' family residences; as in Birrell, the
searches were "PRIMARILY DIRECTED SOLETY AND EXCLUSIVELY" against the petitioners. Still both types of
documents were suppressed in Birrell because of the illegal search. In the case at bar, the petitioners connection
with the premises raided is much closer than in Birrell.

Thus, the petitioners have full standing to move for the quashing of all the warrants regardless whether these were
directed against residences in the narrow sense of the word, as long as the documents were personal papers of the
petitioners or (to the extent that they were corporate papers) were held by them in a personal capacity or under their
personal control.

Prescinding a from the foregoing, this Court, at all events, should order the return to the petitioners
all personal and private  papers and effects seized, no matter where these were seized, whether from their
residences or corporate offices or any other place or places. The uncontradicted  sworn statements of the petitioners
in their, various pleadings submitted to this Court indisputably show that amongst the things seized from the
corporate offices and other places were personal  and private papers and effects belonging to the petitioners.

If there should be any categorization of the documents, papers and things which where the objects of the unlawful
searches and seizures, I submit that the grouping should be: (a) personal  or private  papers of the petitioners were
they were unlawfully seized, be it their family residences offices, warehouses and/or premises owned and/or
possessed (actually or constructively) by them as shown in all the search and in the sworn applications filed in
securing the void search warrants and (b) purely corporate papers belonging to corporations. Under such
categorization or grouping, the determination of which unlawfully seized papers, documents and things
are personal/private of the petitioners or purely corporate papers will have to be left to the lower courts which issued
the void search warrants in ultimately effecting the suppression and/or return of the said documents.

And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear legal standing to
move for the suppression of purely corporate  papers as "President and/or General Manager" of the corporations
involved as specifically mentioned in the void search warrants.

Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal prosecutions,
the great clauses of the constitutional proscription on illegal searches and seizures do not withhold the mantle of their
protection from cases not criminal in origin or nature.

1967; 1973 and 1987 charters

(Fundamental liberties of the people does not govern relationship between individuals and another private individuals / In
the absence of governmental interference, liberties guaranteed by the constitution . (12 cases)

1. G.R. No. 81561             January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch
XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and
Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes,
went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita,
Manila, carrying with them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation to
Shirley Reyes) attended to them. The appellant informed Anita Reyes that he was sending the packages to
a friend in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing therein
his name, passport number, the date of shipment and the name and address of the consignee, namely,
"WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however,
refused, assuring her that the packages simply contained books, cigars, and gloves and were gifts to his
friend in Zurich. In view of appellant's representation, Anita Reyes no longer insisted on inspecting the
packages. The four (4) packages were then placed inside a brown corrugated box one by two feet in size (1'
x 2'). Styro-foam was placed at the bottom and on top of the packages before the box was sealed with
masking tape, thus making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes
(proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for
final inspection. When he opened appellant's box, a peculiar odor emitted therefrom. His curiousity aroused,
he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside. Opening one of the
bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves. He made an
opening on one of the cellophane wrappers and took several grams of the contents thereof (tsn, pp. 29-30,
October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory
examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau
of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was
interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was
 still in his office. Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes'
office at Ermita, Manila (tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI
agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the
gloves. Dried marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p.
38, October 6, 1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the
package contained bricks or cake-like dried marijuana leaves. The package which allegedly contained
tabacalera cigars was also opened. It turned out that dried marijuana leaves were neatly stocked
underneath the cigars (tsn, p. 39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a
"Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being
the Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987,
appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed light on the attempted
shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to
the Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana
flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous
Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED
OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT
HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT
OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE
APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p.
1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his
constitutional rights against unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III,
Constitution) and therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires otherwise as prescribed by law.
 (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose
in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the
1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons or things to be seized.
(Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the
Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which
are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81
S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible
any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling
earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not
affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and
is carried over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of
evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache &
Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144
SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510,
March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by
the State acting through the medium of its law enforcers or other authorized government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was
primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and
participation of State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional
right against unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private
individual, allegedly in violation of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution
cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person,
whether citizen or alien, from interference by government, included in which is his residence, his papers, and
other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the circumstances
above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed
any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling
and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v.
United States, 116 US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right
against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous
cases, its protection applies to governmental action. Its origin and history clearly show that it was intended
 as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other
than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to
secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property,
subject to the right of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the
automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police
authorities, was declared admissible in prosecution for illegal possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are
restraints upon the government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d
621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938
(1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the owner of a motel in
which appellant stayed overnight and in which he left behind a travel case containing the
evidence*** complained of. The search was made on the motel owner's own initiative. Because of it, he
became suspicious, called the local police, informed them of the bag's contents, and made it available to the
authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a
search by a private citizen. Rather, the amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the latter transgressing
appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should
not be admitted against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the
evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument
stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an
illegal search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job
Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was
reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary measure before delivery
of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI
and later summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the
shipment and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and
seizure, much less an illegal one, contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a
warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain
sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is
not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on
the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71
L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of
the police at the specific request of the manager and where the search was initially made by the owner there is no
unreasonable search and seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds
support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law
of the land must always be subject to protection. But protection against whom? Commissioner Bernas in his
sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of constitutional
democracy. Protection against whom? Protection against the state. The Bill of Rights governs the
relationship between the individual and the state. Its concern is not the relation between individuals,
between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden
zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner
Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only
against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked
against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the
test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private
establishment for its own and private purposes, as in the case at bar, and without the intervention of police
authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual,
not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the
government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present
phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the
constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by
police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the government and
fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be
emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of
either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof
(See Soliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30,
1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone
else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an
individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private
individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious legal
complications and an absurd interpretation of the constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies,
in  pari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and
communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the
undisputed fact that his rights under the constitution while under custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and found nothing to
indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave
statements without the assistance of counsel. The law enforcers testified that accused/appellant was informed of his
constitutional rights. It is presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their
testimonies should be given full faith and credence, there being no evidence to the contrary. What is clear from the
records, on the other hand, is that appellant refused to give any written statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:
 You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate
the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional
right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination.
As borne out by the records, neither was there any proof by the defense that appellant gave uncounselled confession
while being investigated. What is more, we have examined the assailed judgment of the trial court and nowhere is
there any reference made to the testimony of appellant while under custodial investigation which was utilized in the
finding of conviction. Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of
the packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met
in a pub along Ermita, Manila: that in the course of their 30-minute conversation, Michael requested him to ship the
packages and gave him P2,000.00 for the cost of the shipment since the German national was about to leave the
country the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary
to human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour
could not have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and
for appellant to readily accede to comply with the undertaking without first ascertaining its contents. As stated by the
trial court, "(a) person would not simply entrust contraband and of considerable value at that as the marijuana
flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the
other hand, would not simply accept such undertaking to take custody of the packages and ship the same from a
complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand,
appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of
credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol,
174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously
convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and
that the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug
abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p.
66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself
such as the common experience and observation of mankind can approve as probable under the circumstances
(People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172
SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records
further show, appellant did not even bother to ask Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have so indicated in
the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the
owner and shipper thereof giving more weight to the presumption that things which a person possesses, or exercises
acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim
otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is
hereby AFFIRMED. No costs.

SO ORDERED.
 2. G.R. No. 113271 October 16, 1997

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners,

vs.
NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA CATOLICO, respondents.

DAVIDE, JR., J.:

Nor is he a true Servant [who] buys dear to share in the Profit with the Seller.1

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private respondent Antonia Melodia
Catolico (hereafter Catolico) not a "true Servant," thereby assailing the 30 September 1993 decision2 and December
1993 Resolution3 of the National Labor Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93, which
sustained the reinstatement and monetary awards in favor of private respondent 4 and denied the petitioners' motion
for reconsideration.5

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter WATEROUS) on 15 August
1988.

On 31 July 1989, Catolico received a memorandum 6 from WATEROUS Vice President-General Manager Emma R.
Co warning her not to dispense medicine to employees chargeable to the latter's accounts because the same was a
prohibited practice. On the same date, Co issued another memorandum 7 to Catolico warning her not to negotiate with
suppliers of medicine without consulting the Purchasing Department, as this would impair the company's control of
purchases and, besides she was not authorized to deal directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but explained that her act was "due to
negligence," since fellow employee Irene Soliven "obtained the medicines in bad faith and through misrepresentation
when she claimed that she was given a charge slip by the Admitting Dept." Catolico then asked the company to look
into the fraudulent activities of Soliven.8

In a memorandum9 dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro warned Catolico

against the "rush delivery of medicines without the proper documents."

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an irregularity involving
Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he described as follows:

. . . A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045 with YSP Sales
Invoice No. 266 representing purchase of ten (10) bottles of Voren tablets at P384.00 per unit. Previews
P.O.s issued to YSP, Inc. showed that the price per bottle is P320.00 while P.O. No. 19045 is priced at
P384.00 or an over price of P64.00 per bottle (or total of P640.00). WDRC paid the amount of P3,840.00
thru MBTC Check No. 222832 dated December 15, 1988. Verification was made to YSP, Inc. to determine
the discrepancy and it was found that the cost per bottle was indeed overpriced. YSP, Inc. Accounting
Department (Ms. Estelita Reyes) confirmed that the difference represents refund of jack-up price of ten
 bottles of Voren tablets per sales invoice no. 266 as per their check voucher no. 629552 (shown to the
undersigned), which was paid to Ms. Catolico through China Bank check no. 892068 dated November 9,
1989 . . . .

The undersigned talked to Ms. Catolico regarding the check but she denied having received it and that she
is unaware of the overprice. However, upon conversation with Ms. Saldana, EDRC Espana Pharmacy Clerk,
she confirmed that the check amounting to P640.00 was actually received by Ms. Catolico. As a matter of
fact, Ms. Catolico even asked Ms. Saldana if she opened the envelope containing the check but Ms.
Saldana answered her "talagang ganyan, bukas." It appears that the amount in question (P640.00) had
been pocketed by Ms. Catolico.10

Forthwith, in her memorandum11 dated 37 January 1990, Co asked Catolico to explain, within twenty-four hours, her
side of the reported irregularity. Catolico asked for additional time to give her explanation, 12 and she was granted a
48-hour extension from 1 to 3 February 1990. However, on 2 February 1990, she was informed that effective 6
February 1990 to 7 March 1990, she would be placed on preventive suspension to protect the interests of the
company.13

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice No. 266 for her to be
able to make a satisfactory explanation. In said letter she protested Saldaña's invasion of her privacy when Saldaña
opened an envelope addressed to Catolico.14

In a letter15 to Co dated 10 February 1990, Catolico, through her counsel, explained that the check she received from
YSP was a Christmas gift and not a "refund of overprice." She also averred that the preventive suspension was ill-
motivated, as it sprang from an earlier incident between her and Co's secretary, Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a memorandum 16 notifying Catolico of her
termination; thus:

We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and Feb. 10, 1990
respectively regarding our imposition of preventive suspension on you for acts of dishonesty. However, said
letters failed to rebut the evidences [sic] in our possession which clearly shows that as a Pharmacist
stationed at Espana Branch, you actually made Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren
tablets at P384.00/bottle with previous price of P320.00/bottle only. A check which you received in the
amount of P640.00 actually represents the refund of over price of said medicines and this was confirmed by
Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest of the company. Accordingly, you
are hereby terminated effective March 8, 1990.

On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor practice, illegal
dismissal, and illegal suspension.17

In his decision18 of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair labor practice against
petitioners. Nevertheless, he decided in favor of Catolico because petitioners failed to "prove what [they] alleged as
complainant's dishonesty," and to show that any investigation was conducted. Hence, the dismissal was without just
cause and due process. He thus declared the dismissal and suspension illegal but disallowed reinstatement, as it
would not be to the best interest of the parties. Accordingly, he awarded separation pay to Catolico computed at one-
half month's pay for every year of service; back wages for one year; and the additional sum of P2,000.00 for illegal
suspension "representing 30 days work." Arbiter Lopez computed the award in favor of Catolico as follows:

30 days Preventive Suspension P2,000.00

Backwages 26,858.50
1/12 of P26,858.50 2,238.21
Separation pay (3 years) 4,305.15
—————
TOTAL AWARD P35,401.86
—————
Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the Labor Arbiter
erred in finding that Catolico was denied due process and that there was no just cause to terminate her services.

In its decision19 of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on the ground that
petitioners were not able to prove a just cause for Catolico's dismissal from her employment. It found that petitioner's
evidence consisted only of the check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw
when the latter opened the envelope. But, it declared that the check was inadmissible in evidence pursuant to
Sections 2 and 3(1 and 2) of Article III of the Constitution.20 It concluded:

With the smoking gun evidence of respondents being rendered inadmissible, by virtue of the constitutional
right invoked by complainants, respondents' case falls apart as it is bereft of evidence which cannot be used
as a legal basis for complainant's dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the appealed decision
by deleting the award for illegal suspension as the same was already included in the computation of the aggregate of
the awards in the amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this special civil action for certiorari, which is
anchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its findings of facts.

II. Due process was duly accorded to private respondent.

III. Public respondent gravely erred in applying Section 3, Article III of the 1987
Constitution.

As to the first and second grounds, petitioners insist that Catolico had been receiving "commissions" from YSP, or
probably from other suppliers, and that the check issued to her on 9 November 1989 was not the first or the last.
They also maintained that Catolico occupied a confidential position and that Catolico's receipt of YSP's check,
aggravated by her "propensity to violate company rules," constituted breach of confidence. And contrary to the
findings of NLRC, Catolico was given ample opportunity to explain her side of the controversy.

Anent the third ground, petitioners submit that, in light of the decision in the People v. Marti,21 the constitutional
protection against unreasonable searches and seizures refers to the immunity of one's person from interference by
government and cannot be extended to acts committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed with the NLRC's
decision, as it was of the persuasion that (a) the conclusions reached by public respondent are inconsistent with its
findings of fact; and (b) the incident involving the opening of envelope addressed to private respondent does not
warrant the application of the constitutional provisions. It observed that Catolico was given "several opportunities" to
explain her side of the check controversy, and concluded that the opportunities granted her and her subsequent
explanation "satisfy the requirements of just cause and due process." The OSG was also convinced that Catolico's
dismissal was based on just cause and that Catolico's admission of the existence of the check, as well as her "lame
excuse" that it was a Christmas gift from YSP, constituted substantial evidence of dishonesty. Finally, the OSG
echoed petitioners' argument that there was no violation of the right of privacy of communication in this case, 22 adding
that petitioner WATEROUS was justified in opening an envelope from one of its regular suppliers as it could assume
that the letter was a business communication in which it had an interest.

In its Comment which we required to be filed in view of the adverse stand of the OSG, the NLRC contends that
petitioners miserably failed to prove their claim that it committed grave abuse of discretion in its findings of fact. It
then prays that we dismiss this petition.

In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to justify her dismissal. The check in issue
was given to her, and she had no duty to turn it over to her employer. Company rules do not prohibit an employee
from accepting gifts from clients, and there is no indication in the contentious check that it was meant as a refund for
overpriced medicines. Besides, the check was discovered in violation of the constitutional provision on the right to
privacy and communication; hence, as correctly held by the NLRC, it was inadmissible in evidence.

Catolico likewise disputes petitioners' claim that the audit report and her initial response that she never received a
check were sufficient to justify her dismissal. When she denied having received a check from YSP, she meant that
she did not receive any refund of overprice, consistent with her position that what she received was a token gift. All
that can be gathered from the audit report is that there was apparently an overcharge, with no basis to conclude that
Catolico pocketed the amount in collusion with YSP. She thus concluded that her dismissal was based on a mere
suspicion.

Finally, Catolico insists that she could not have breached the trust and confidence of WATEROUS because, being
merely a pharmacist, she did not handle "confidential information or sensitive properties." She was doing the task of a
saleslady: selling drugs and making requisitions when supplies were low.

A thorough review of the record leads us to no other conclusion than that, except as to the third ground, the instant
petition must fail.

Concededly, Catolico was denied due process. Procedural due process requires that an employee be apprised of the
charge against him, given reasonable time to answer the charge, allowed ample opportunity to be heard and defend
himself, and assisted by a representative if the employee so
desires.23 Ample opportunity connotes every kind of assistance that management must accord the employee to
enable him to prepare adequately for his defense, including legal representation.24

In the case at bar, although Catolico was given an opportunity to explain her side, she was dismissed from the
service in the memorandum of 5 March 1990 issued by her Supervisor after receipt of her letter and that of her
counsel. No hearing was ever conducted after the issues were joined through said letters. The Supervisor's
memorandum spoke of "evidences [sic] in [WATEROUS] possession," which were not, however, submitted. What the
"evidences" [sic] other than the sales invoice and the check were, only the Supervisor knew.

Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove just and valid cause for
dismissing an employee, and its failure to discharge that burden would result in a finding that the dismissal is
unjustified.25 Here, WATEROUS proved unequal to the task.

It is evident from the Supervisor's memorandum that Catolico was dismissed because of an alleged anomalous
transaction with YSP. Unfortunately for petitioners, their evidence does not establish that there was an overcharge.
Control Clerk Eugenio C. Valdez, who claims to have discovered Catolico's inappropriate transaction, stated in his
affidavit:26

4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in violation of the
[company] procedure, made an under the table deal with YSP Phils. to supply WDRC needed medicines like
Voren tablets at a jack-up price of P384.00 per bottle of 50 mg. which has a previous price of only P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that the cost per bottle
was indeed overpriced. The Accounting Department of YSP Phils. through Ms. Estelita Reyes confirmed that
there was really an overprice and she said that the difference was refunded through their check voucher no.
629552 which was shown to me and the payee is Melodia Catolico, through a China Bank Check No.
892068 dated November 9, 1989.

It clearly appears then that Catolico's dismissal was based on hearsay information. Estelita Reyes never testified nor
executed an affidavit relative to this case; thus, we have to reject the statements attributed to her by Valdez. Hearsay
evidence carries no probative value.27

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez informed Co, through the
former's memorandum28 of 29 January 1990, that WATEROUS paid YSP P3,840.00 "thru MBTC Check No. 222832,"
the said check was never presented in evidence, nor was any receipt from YSP offered by petitioners.

Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate an overcharge. The
purchase order dated 16 August 198929 stated that the Voren tablets cost P320.00  per box, while the purchase order
dated 5 October 198930 priced the Voren tablets at P384.00 per bottle. The difference in price may then be attributed
to the different packaging used in each purchase order.

Assuming that there was an overcharge, the two purchase orders for the Voren tablets were recommended by
Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and approved by Vice President-General
Manager Emma R. Co. The purchase orders were silent as to Catolico's participation in the purchase. If the price
increase was objectionable to petitioners, they or their officers should have disapproved the transaction.
Consequently, petitioners had no one to blame for their predicament but themselves. This set of facts emphasizes the
exceedingly incredible situation proposed by petitioners. Despite the memorandum warning Catolico not to negotiate
with suppliers of medicine, there was no proof that she ever transacted, or that she had the opportunity to transact,
with the said suppliers. Again, as the purchase orders indicate, Catolico was not at all involved in the sale of the
Voren tablets. There was no occasion for Catolico to initiate, much less benefit from, what Valdez called an "under
the table deal" with YSP.

Catolico's dismissal then was obviously grounded on mere suspicion, which in no case can justify an employee's
dismissal. Suspicion is not among the valid causes provided by the Labor Code for the termination of
employment;31 and even the dismissal of an employee for loss of trust and confidence must rest on substantial
grounds and not on the employer's arbitrariness, whims, caprices, or suspicion.32 Besides, Catolico was not shown to
be a managerial employee, to which class of employees the term "trust and confidence" is restricted.33

As regards the constitutional violation upon which the NLRC anchored its decision, we find no reason to revise the
doctrine laid down in People vs. Marti34 that the Bill of Rights does not protect citizens from unreasonable searches
and seizures perpetrated by private individuals. It is not true, as counsel for Catolico claims, that the citizens have no
recourse against such assaults. On the contrary, and as said counsel admits, such an invasion gives rise to both
criminal and civil liabilities.

Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement would not be to the best
interest of the parties, he correctly awarded separation pay to Catolico. Separation pay in lieu of reinstatement is
computed at one month's salary for every year of service. 35 In this case, however, Labor Arbiter Lopez computed the
separation pay at one-half month's salary for every year of service. Catolico did not oppose or raise an objection. As
such, we will uphold the award of separation pay as fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and resolution of the National
Labor Relations Commission dated 30 September 1993 and 2 December 1993, respectively, in NLRC-NCR CA No.
005160-93 are AFFIRMED, except as to its reason for upholding the Labor Arbiter's decision, viz., that the evidence
against private respondent was inadmissible for having been obtained in violation of her constitutional rights of
privacy of communication and against unreasonable searches and seizures which is hereby set aside.

Costs against petitioners.

SO ORDERED.
 3. G.R. No. 143944            July 11, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BASHER BONGCARAWAN y MACARAMBON, accused-appellant.

PUNO, J.:

This is an appeal from the Decision1 dated December 27, 1999 of the Regional Trial Court of Iligan City, Branch 06, in
Criminal Case No. 06-7542, finding accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of
violation of Section 16, Article III of Republic Act No. 6425 2 as amended, and sentencing him to suffer the penalty
of reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary
imprisonment in case of insolvency.1âwphi1.nêt

Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus:

"That on or about March 13, 1999, in the City of Iligan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, without authority of law, did then and there wilfully, unlawfully and
feloniously have in his possession, custody and control eight (8) packs of Methamphetamine Hydrochloride,
a regulated drug commonly known as Shabu, weighing approximately 400 grams, without the corresponding
license or prescription.

Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the Dangerous Drugs
Act of 1972, as amended by RA 7659."3

During the arraignment, the accused pleaded not guilty. Trial ensued.

Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailed
from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan
City when its security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy about her missing
jewelry. Canoy suspected one of her co-passengers at cabin no. 106 as the culprit. Diesmo and four (4) other
members of the vessel security force accompanied Canoy to search for the suspect whom they later found at the
economy section.4 The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of
the complaint and was invited to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry
was found. He was then escorted by two (2) security agents back to the economy section to get his baggage. The
accused took a Samsonite suitcase and brought this back to the cabin. When requested by the security, the accused
opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance.
Suspecting the substance to be "shabu," the security personnel immediately reported the matter to the ship captain
and took pictures of the accused beside the suitcase and its contents. They also called the Philippine Coast Guard for
assistance.5 At about 6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3
Merchardo De Guzman of the Philippine Coast Guard arrived and took custody of the accused and the seized items--
the Samsonite suitcase, a brown bag 6 and eight (8) small plastic packs of white crystalline substance. 7 When asked
about the contraband articles, the accused explained that he was just requested by a certain Alican "Alex" Macapudi
to bring the suitcase to the latter's brother in Iligan City. 8 The accused and the seized items were later turned over by
the coast guard to the Presidential Anti-Organized Crime Task Force (PAOCTF). Chief Inspector Graciano Mijares
and his men brought the accused to the PAOCTF Headquarters, 9 while the packs of white crystalline substance were
sent to the NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic Chemist Nicanor
Cruz later confirmed the substance to be methamphetamine hydrochloride, commonly known as "shabu," weighing
399.3266 grams.10

The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was in Quiapo,
Manila where he met Alican "Alex" Macapudi, a neighbor who has a store in Marawi City. He was requested by
Macapudi to bring a Samsonite suitcase containing sunglasses and watches to Iligan City, and to give it to
Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night, carrying a big luggage
full of clothes, a small luggage or "maleta" containing the sunglasses and brushes he bought from Manila, and the
Samsonite suitcase of Macapudi.11 He stayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the vessel
was about to dock at the Iligan port, he took his baggage and positioned himself at the economy section to be able to
disembark ahead of the other passengers. There, he met a friend, Ansari Ambor. While they were conversing, five (5)
members of the vessel security force and a woman whom he recognized as his co-passenger at cabin no. 106 came
and told him that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no. 106
where he was frisked. Subsequently, he was asked to get his baggage, so he went back to the economy section and
took the big luggage and Macapudi's Samsonite suitcase. He left the small "maleta" containing sunglasses and
brushes for fear that they would be confiscated by the security personnel. When requested, he voluntarily opened the
big luggage, but refused to do the same to the Samsonite suitcase which he claimed was not his and had a secret
combination lock. The security personnel forcibly opened the suitcase and found packs of white crystalline substance
inside which they suspected to be "shabu." They took pictures of him with the merchandise, and asked him to sign a
turn over receipt which was later given to the Philippine Coast Guard, then to the PAOCTF.12

On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads:

"WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon GUILTY beyond
reasonable doubt as principal of the offense of violation of Section 16, Art. III, R.A. No. 6425 as amended by
R.A. No. 7659 and hereby imposes upon him the penalty of RECLUSION PERPETUA and a fine of FIVE
HUNDRED THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency.

Having been under preventive imprisonment since March 13, 1999 until the present, the period of such
preventive detention shall be credited in full in favor of the accused in the service of his sentence.

The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered delivered to the
National Bureau of Investigation for proper disposition.

SO ORDERED."13

Hence, this appeal where the accused raises the following assignment of errors:

"I.

THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS ADMISSIBLE IN
EVIDENCE AGAINST THE ACCUSED/APPELLANT.

II.

THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE CONFISCATED
EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST HIM." 14

On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing the
methamphetamine hydrochloride or "shabu" was forcibly opened and searched without his consent, and hence, in
violation of his constitutional right against unreasonable search and seizure. Any evidence acquired pursuant to such
unlawful search and seizure, he claims, is inadmissible in evidence against him. He also contends that  People v.
Marti15 is not applicable in this case because a vessel security personnel is deemed to perform the duties of a
policeman.

The contentions are devoid of merit.

The right against unreasonable search and seizure is a fundamental right protected by the Constitution. 16 Evidence
acquired in violation of this right shall be inadmissible for any purpose in any proceeding. 17 Whenever this right is
challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving
consent to the search and seizure. It should be stressed, however, that protection is against transgression committed
by the government or its agent. As held by this Court in the case of People v. Marti,18 "[i]n the absence of
governmental interference, liberties guaranteed by the Constitution cannot be invoked against the State." 19 The
constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the
government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State
to whom the restraint against arbitrary and unreasonable exercise of power is imposed.20

In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was
only after they found "shabu" inside the suitcase that they called the Philippine Coast Guard for assistance. The
search and seizure of the suitcase and the contraband items was therefore carried out without government
intervention, and hence, the constitutional protection against unreasonable search and seizure does not apply.

There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel
security personnel should be considered as one conducted by the police authorities for like the latter, the former are
armed and tasked to maintain peace and order. The vessel security officer in the case at bar is a private employee
and does not discharge any governmental function. In contrast, police officers are agents of the state tasked with the
sovereign function of enforcement of the law. Historically and until now, it is against them and other agents of the
state that the protection against unreasonable searches and seizures may be invoked.

On the second assignment of error, the accused-appellant contends that he is not the owner of the Samsonite
suitcase and he had no knowledge that the same contained "shabu." He submits that without knowledge or intent to
possess the dangerous drug, he cannot be convicted of the crime charged.21

We are not persuaded.

In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyond reasonable
doubt, viz: (1) that the accused is in possession of the object identified as a prohibited or a regulated drug; (2) that
such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said
drug.22 The first two elements were sufficiently proven in this case, and were in fact undisputed. We are left with the
third.

As early as 1910 in the case of United States v. Tan Misa,23 this Court has ruled that to warrant conviction, the
possession of dangerous drugs must be with knowledge of the accused, or that animus possidendi existed together
with the possession or control of such articles. 24 It has been ruled, however, that possession of dangerous drugs
constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence
of a satisfactory explanation of such possession.25 Hence, the burden of evidence is shifted to the accused to explain
the absence of knowledge or animus possidendi.26

In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, self-serving and incredulous,
was not given credence by the trial court. We find no reason to disagree. Well-settled is the rule that in the absence
of palpable error or grave abuse of discretion on the part of the trial judge, the trial court's evaluation of the credibility
of witnesses will not be disturbed on appeal.27 Moreover, evidence must be credible in itself to deserve credence and
weight in law. In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it
would be inspected.28 Why he got the Samsonite suitcase allegedly not owned by him and which had a combination
lock known only to the owner remains unclear. He also claims that he did not present his small "maleta" for inspection
for fear that its contents consisting of expensive sunglasses and brushes would be confiscated, 29 but he brought the
Samsonite suitcase which is not his and also contained expensive sunglasses, and even watches.30

The things in possession of a person are presumed by law to be owned by him. 31 To overcome this presumption, it is
necessary to present clear and convincing evidence to the contrary. In this case, the accused points to a certain
Alican "Alex" Macapudi as the owner of the contraband, but presented no evidence to support his claim. As aptly
observed by the trial judge:

"First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply a figment of the
imagination? He says that Alex Macap[u]di is a friend and a fellow businessman who has a stall selling
sunglasses in Marawi City. But no witnesses were presented to prove that there is such a living, breathing,
 flesh and blood person named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he
does exist, he has friends, fellow businessmen and acquaintances who could testify and support the claim of
the accused."32

Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of the defense of the
accused-appellant. Stories can easily be fabricated. It will take more than bare-bone allegations to convince this
Court that a courier of dangerous drugs is not its owner and has no knowledge or intent to possess the
same.1âwphi1.nêt

WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542,
convicting accused-appellant Basher Bongcarawan of violation of Section 16, Article III of Republic Act No. 6425, as
amended, and sentencing him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency, is AFFIRMED.

Costs against the accused-appellant.

SO ORDERED.

4. G.R. No. 130612 May 11, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BERNARDINO DOMANTAY, @ "JUNIOR OTOT," accused-appellant.

MENDOZA, J.:

This case is here on appeal from the decision1 of the Regional Trial Court of Dagupan City (Branch 57), finding
accused-appellant guilty of rape with homicide and sentencing him to death, and to indemnify the heirs of the victim in
the amount of P480,000.00, and to pay the costs.

The facts hark back to the afternoon of October 17, 1996, at around 4 o'clock, when the body of six-year old Jennifer
Domantay was found sprawled amidst a bamboo grove in Guilig, Malasiqui, Pangasinan. The child's body bore
several stab wounds. Jennifer had been missing since lunch time.

The medical examination conducted the following day by Dr. Ma. Fe Leticia Macaranas, the rural health physician of
Malasiqui, showed that Jennifer died of multiple organ failure and hypovolemic shock secondary to 38 stab wounds at
the back. Dr. Macaranas found no lacerations or signs of inflammation of the outer and inner labia and the vaginal
walls of the victim's genitalia, although the vaginal canal easily admitted the little finger with minimal resistance.
Noting possible commission of acts of lasciviousness, Dr. Macaranas recommended an autopsy by a medico-legal
expert of the NBI.2

The investigation by the Malasiqui police pointed to accused-appellant Bernardino Domantay, a cousin of the victim's
grandfather, as the lone suspect in the gruesome crime. At around 6:30 in the evening of that day, police officers
Montemayor, de la Cruz, and de Guzman of the Malasiqui Philippine National Police (PNP) picked up accused-
appellant at the Malasiqui public market and took him to the police station where accused-appellant, upon
questioning by SPO1 Antonio Espinoza, confessed to killing Jennifer Domantay. He likewise disclosed that at around
3:30 that afternoon, he had given the fatal weapon used, a bayonet, to Elsa and Jorge Casingal, his aunt and uncle
respectively, in Poblacion Sur, Bayambang, Pangasinan. The next day, October 18, 1996, SPO1 Espinoza and
another policeman took accused-appellant to Bayambang and recovered the bayonet from a tricycle belonging to the
Casingal spouses. The police officers executed a receipt to evidence the confiscation of the weapon.3

On the basis of the post-mortem findings of Dr. Macaranas, SPO4 Juan Carpizo, the Philippine National Police chief
investigator at Malasiqui, filed, on October 21, 1996, a criminal complaint for murder against accused-appellant
before the Municipal Trial Court (MTC) of Malasiqui. On October 25, 1996, Dr. Ronald Bandonill, medico-legal expert
of the NBI, performed an autopsy on the embalmed body of Jennifer. The result of his examination of the victim's
genitalia indicated that the child's hymen had been completely lacerated on the right side. Based on this finding,
SPO4 Carpizo amended the criminal complaint against accused-appellant to rape with homicide. Subsequently, the
following information was filed:4

That on or about the 17th day of October, 1996, in the afternoon, in barangay Guilig, Municipality of
Malasiqui, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd design and armed with a bayonnete, did then and there,
wilfully, unlawfully and feloniously have sexual intercourse with Jennifer Domantay, a minor of 6
years old against her will and consent, and on the same occasion, the said accused with intent to
kill, then and there, wilfully, unlawfully and feloniously stab with the use of a bayonnete, the said
Jennifer Domantay, inflicting upon her multiple stab wounds, which resulted to her death, to the
damage and prejudice of her heirs.

At the trial, the prosecution presented seven witnesses, namely, Edward, Jiezl, Lorenzo, all surnamed Domantay,
Joselito Mejia, Antonio Espinoza, Celso Manuel, and Dr. Ronald Bandonill, to establish its charge that accused-
appellant had raped and killed Jennifer Domantay.

Edward Domantay testified that in the morning of October 17, 1996, accused-appellant and his two brothers-in-law,
Jaime Caballero and Daudencio Macasaeb, had a round of drinks in front of the latter's house in Guilig, Malasiqui,
Pangasinan. Edward Domantay said that he was in front of Macasaeb's house, tending to some pigeons in his
yard.5 After the group had consumed several bottles of San Miguel gin, accused-appellant gave money to Edward
Domantay and asked him to buy two bottles of gin and a bottle of Sprite. 6 Edward said he joined the group and sat
between Daudencio Macasaeb and accused-appellant. 7 Edward said that accused-appellant, who, apparently had
one too many then, rolled up his shirt and said: "No diad Antipolo tan L[i]pa et walay massacre, diad Guilig wala,
walay massacren kod dia, walay onakis-akis" ("In Antipolo and Lipa, there were massacres; here in Guilig, there will
also be a massacre. I will massacre somebody here, and they will cry and cry"). Edward Domantay saw that tucked in
the left side of accused-appellant's waistline was a bayonet without a cover handle. 8 It was not the first time that
Edward had seen accused-appellant with the knife as the latter usually carried it with him.9

Jiezl Domantay, 10, likewise testified. She said that, at about 2 o'clock in the afternoon on October 17, 1996, she and
four other children were playing in front of their house in Guilig, Malasiqui, Pangasinan. Jiezl saw accused-appellant
and Jennifer Domantay walking towards the bamboo grove of Amparo Domantay where Jennifer's body was later
found. Accused-appellant was about two meters ahead of Jennifer. The bamboo grove was about 8 to 10 meters
from the house of Jiezl Domantay. 10

Lorenzo Domantay, a relative of the victim, corroborated Jiezl's testimony that accused-appellant had gone to
Amparo Domantay's bamboo grove in the afternoon of October 17, 1996. Lorenzo said that afternoon, on his way to
his farm, he saw accused-appellant about 30 meters away, standing at the spot in the bamboo grove where
Jennifer's body was later found. Accused-appellant appeared restless and worried as he kept looking around.
However, as Lorenzo was in a hurry, he did not try to find out why accused-appellant appeared to be nervous. 11

Prosecution witness Joselito Mejia, a tricycle driver, said that, in the afternoon of October 17, 1996, he was about to
take his lunch at home in Alacan, a neighboring barangay about half a kilometer from Guilig, when accused-appellant
implored Mejia to take him to Malasiqui at once. Mejia told accused-appellant that he was going to take his lunch first,
but the latter pleaded with him, saying they will not be gone for long. Mejia, therefore, agreed. Mejia noticed that
accused-appellant was nervous and afraid. Accused-appellant later changed his mind. Instead of going to the town
proper, he alighted near the Mormon's church, outside Malasiqui. 12
In addition, the prosecution presented SPO1 Antonio Espinoza and Celso Manuel who testified that, on separate
occasions, accused-appellant had confessed to the brutal killing of Jennifer Domantay.

SPO1 Espinoza testified that he investigated accused-appellant after the latter had been brought to the Malasiqui
police station in the evening of October 17, 1996. Before he commenced his questioning, he apprised accused-
appellant of his constitutional right to remain silent and to have competent and independent counsel, in English,
which was later translated into Pangasinense. 13 According to SPO1 Espinoza, accused-appellant agreed to answer
the questions of the investigator even in the absence of counsel and admitted killing the victim. Accused-appellant
also disclosed the location of the bayonet he used in killing the victim. 14 On cross-examination, Espinoza admitted
that at no time during the course of his questioning was accused-appellant assisted by counsel. Neither was
accused-appellant's confession reduced in writing. 15 Espinoza's testimony was admitted by the trial court over the
objection of the defense.

Celso Manuel, for his part, testified that he is a radio reporter of station DWPR, an AM station based in Dagupan City.
He covers the third district of Pangasinan, including Malasiqui. Sometime in October 1996, an uncle of the victim
came to Dagupan City and informed the station about Jennifer Domantay's case. 16 On October 23, 1996, Manuel
went to Malasiqui to interview accused-appellant who was then detained in the municipal jail. He described what
transpired during the interview thus: 17

PROS. QUINIT:

Q Did you introduce yourself as a media practitioner?

A Yes, sir.

Q How did you introduce yourself to the accused?

A I showed to Bernardino Domantay alias "Junior Otot" my I.D. card and I

presented myself as a media practitioner with my tape recorder [in] my hand, sir.

Q What was his reaction to your request for an interview?

A He was willing to state what had happened, sir.

Q What are those matters which you brought out in that interview with the
accused Bernardino Domantay alias  "Junior Otot"?

A I asked him what was his purpose for human interest's sake as a reporter, why
did he commit that alleged crime. And I asked also if he committed the crime and
he answered "yes." That's it.

x x x           x x x          x x x

PROS. QUINIT:

Q You mentioned about accused admitting to you on the commi[ssion] of the

crime, how did you ask him that?

A I asked him very politely.

Q More or less what have you asked him on that particular matter?

A I asked "Junior Otot," Bernardino Domantay, "Kung pinagsisisihan mo ba ang

iyong ginawa?" "Opo" sabi niya, "Ibig mo bang sabihin Jun, ikaw ang pumatay
kay Jennifer?", "Ako nga po" The [l]ast part of my interview, "Kung nakikinig ang
mga magulang ni Jennifer, ano ang gusto mong iparating?", "kung gusto nilang
 makamtan ang hustisya ay tatanggapin ko". That is what he said, and I also
asked Junior Otot, what was his purpose, and he said, it was about the boundary
dispute, and he used that little girl in his revenge.

On cross-examination, Manuel explained that the interview was conducted in the jail, about two to three meters away
from the police station. An uncle of the victim was with him and the nearest policemen present were about two to
three meters from him, including those who were in the radio room. 18 There was no lawyer present. Before
interviewing accused-appellant, Manuel said he talked to the chief of police and asked permission to interview
accused-appellant. 19 On questioning by the court, Manuel said that it was the first time he had been called to testify
regarding an interview he had conducted. 20 As in the case of the testimony of SPO1 Espinoza, the defense objected
to the admission of Manuel's testimony, but the lower court allowed it.

Dr. Bandonill, the NBI medico-legal who conducted an autopsy of the victim on October 25, 1996, testified that
Jennifer Domantay died as a result of the numerous stab wounds she sustained on her back, 21 the average depth of
which was six inches. 22 He opined that the wounds were probably caused by a "pointed sharp-edged
instrument." 23 He also noted on the aforehead, neck, and breast bone of the victim. 24 As for the results of the genital
examination of the victim, Dr. Bandonill said he found that the laceration on the right side of the hymen was caused
within 24 hours of her death. He added that the genital area showed signs of inflammation. 25

Pacifico Bulatao, the photographer who took the pictures of the scene of the crime and of the victim after the latter's
body was brought to her parents' house, identified and authenticated the five pictures (Exhibits A, B, C, D, and E)
offered by the prosecution.

The defense then presented accused-appellant as its lone witness. Accused-appellant denied the allegation against
him. He testified he is an uncle of Jennifer Domantay (he and her grandfather are cousins) and that he worked as a
janitor at the Malasiqui Municipal Hall. He said that at around 1 o'clock in the afternoon of October 17, 1996, he was
bathing his pigs outside in the house of his brother-in-law Daudencio Macasaeb in Guilig, Malasiqui, Pangasinan. He
confirmed that Daudencio was then having drinks in front of his (Macasaeb's) house. Accused-appellant claimed,
however, that he did not join in the drinking and that it was Edward Domantay, whom the prosecution had presented
as witness, and a certain Jaime Caballero who joined the party. He also claimed that it was he whom Macasaeb had
requested to buy some more liquor, for which reason he gave money to Edward Domantay so that the latter could get
two bottles of gin, a bottle of Sprite, and a pack of cigarettes. 26 He denied Edward Domantay's claim that he
(accused-appellant) had raised his shirt to show a bayonet tucked in his waistline and that he had said he would
massacre someone in Guilig. 27

Accused-appellant also confirmed that, at about 2 o'clock in the afternoon, he went to Alacan passing on the trail
beside the bamboo grove of Amparo Domantay. But he said he did not know that Jennifer Domantay was following
him. He further confirmed that in Alacan, he took a tricycle to Malasiqui. The tricycle was driven by Joselito Mejia. He
said he alighted near the Mormon church, just outside of the town proper of Malasiqui to meet his brother. As his
brother did not come, accused-appellant proceeded to town and reported for work. That night, while he was in the
Malasiqui public market, he was picked up by three policemen and brought to the Malasiqui police station where he
was interrogated by SPO1 Espinoza regarding the killing of Jennifer Domantay. He denied having owned to the killing
of Jennifer Domantay to SPO1 Espinoza. He denied he had a grudge against the victim's parents because of a
boundary dispute. 28 With respect to his extrajudicial confession to Celso Manuel, he admitted that he had been
interviewed by the latter, but he denied that he ever admitted anything to the former. 29

As already stated, the trial court found accused-appellant guilty as charged. The dispositive portion of its decision
reads: 30

WHEREFORE, in light of all the foregoing, the Court hereby finds the accused, Bernardino
Domantay @ "Junior Otot" guilty beyond reasonable doubt with the crime of Rape with Homicide
defined and penalized under Article 335 of the Revised Penal Code in relation and as amended by
Republic Act No. 7659 and accordingly, the Court hereby sentences him to suffer the penalty of
death by lethal injection, and to indemnify the heirs of the victim in the total amount of Four
Hundred Eighty Thousand Pesos (P480,000.00), 31 and to pay the costs.

SO ORDERED.

In this appeal, accused-appellant alleges that: 32

 I

THE COURT A QUO ERRED IN APPRECIATING THE EXTRAJUDICIAL CONFESSION[S] MADE

BY THE ACCUSED-APPELLANT.

II

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE FAILURE OF THE

PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

First. Accused-appellant contends that his alleged confessions to SPO1 Antonio Espinoza and Celso Manuel are
inadmissible in evidence because they had been obtained in violation of Art. III, § 12(1) of the Constitution and that,
with these vital pieces of evidence excluded, the remaining proof of his alleged guilt, consisting of circumstantial
evidence, is inadequate to establish his guilt beyond reasonable doubt. 33

Art. III, § 12 of the Constitution in part provides:

(1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this section or section 17 hereof shall be
inadmissible in evidence.

This provision applies to the stage of custodial investigation, that is, "when the investigation is no longer a general
inquiry into an unsolved crime but starts to focus on a particular person as a suspect." 34 R.A. No. 7438 has extended
the constitutional guarantee to situations in which an individual has not been formally arrested but has merely been
"invited" for questioning. 35

Decisions 36 of this Court hold that for an extrajudicial confession to be admissible, it must satisfy the following
requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent
counsel; (3) it must be express; and (4) it must be in writing.

In the case at bar, when accused-appellant was brought to the Malasiqui police station in the evening of October 17,
1996, 37 he was already a suspect, in fact the only one, in the brutal slaying of Jennifer Domantay. He was, therefore,
already under custodial investigation and the rights guaranteed in Art. III, § 12(1) of the Constitution applied to him.
SPO1 Espinoza narrated what transpired during accused-appellant's interrogation: 38

[I] interrogated Bernardino Domantay, prior to the interrogation conducted to him, I informed him of
his constitutional right as follows; that he has the right to remain silent; that he has the right to a
competent lawyer of his own choice and if he can not afford [a counsel] then he will be provided
with one, and further informed [him] that all he will say will be reduced into writing and will be used
the same in the proceedings of the case, but he told me that he will cooperate even in the absence
of his counsel; that he admitted to me that he killed Jennifer Domantay, and he revealed also the
weapon used [and] where he gave [it] to.

But though he waived the assistance of counsel, the waiver was neither put in writing nor made in the presence of
counsel. For this reason, the waiver is invalid and his confession is inadmissible. SPO1 Espinoza's testimony on the
alleged confession of accused-appellant should have been excluded by the trial court. So is the bayonet inadmissible
in evidence, being, as it were, the "fruit of the poisonous tree." As explained in People v.  Alicando: 39

. . . According to this rule, once the primary source (the "tree") is shown to have been unlawfully
obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible.
Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas
 the "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is
equally inadmissible. The rule is based the principle that evidence illegally obtained by the State
should not be used to gain other evidence because the originally illegal obtained evidence taints all
evidence subsequently obtained.

We agree with the Solicitor General, however, that accused-appellant's confession to the radio reporter, Celso
Manuel, is admissible. In People v.
Andan, 40 the accused in a rape with homicide case confessed to the crime during interviews with the media. In
holding the confession admissible, despite the fact that the accused gave his answers without the assistance of
counsel, this Court said: 41

[A]ppellant's [oral] confessions to the newsmen are not covered by Section 12(1) and (3) of Article
III of the Constitution. The Bill of Rights does not concern itself with the relation between a private
individual and another individual. It governs the relationship between the individual and the State.
The prohibitions therein are primarily addressed to the State and its agents.

Accused-appellant claims, however, that the atmosphere in the jail when he was interviewed was "tense and
intimidating" and was similar to that which prevails in a custodial investigation. 42 We are not persuaded. Accused-
appellant was interviewed while he was inside his cell. The interviewer stayed outside the cell and the only person
besides him was an uncle of the victim. Accused-appellant could have refused to be interviewed, but instead, he
agreed. He answered questions freely and spontaneously. According to Celso Manuel, he said he was willing to
accept the consequences of his act.

Celso Manuel admitted that there were indeed some police officers around because about two to three meters from
the jail were the police station and the radio room. 43 We do not think the presence of the police officers exerted any
undue pressure or influence on accused-appellant and coerced him into giving his confession.

Accused-appellant contends that "it is . . . not altogether improbable for the police investigators to ask the police
reporter (Manuel) to try to elicit some incriminating information from the accused." 44 This is pure conjecture. Although
he testified that he had interviewed inmates before, there is no evidence to show that Celso was a police beat
reporter. Even assuming that he was, it has not been shown that, in conducting the interview in question, his purpose
was to elicit incriminating information from accused-appellant. To the contrary, the media are known to take an
opposite stance against the government by exposing official wrongdoings.

Indeed, there is no showing that the radio reporter was acting for the police or that the interview was conducted under
circumstances where it is apparent that accused-appellant confessed to the killing our of fear. As already stated, the
interview was conducted on October 23, 1996, 6 days after accused-appellant had already confessed to the killing to
the police.

Accused-appellant's extrajudicial confession is corroborated by evidence of corpus delicti, namely, the fact of death of
Jennifer Domantay. In addition, the circumstantial evidence furnished by the other prosecution witnesses dovetails in
material points with his confession. He was seen walking toward the bamboo grove, followed by the victim. Later, he
was seen standing near the bamboo grove where the child's body was found. Rule 133 of the Revised Rules on
Evidence provides:

§3. Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial confession

made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence
of corpus delicti.

§4. Evidence necessary in treason cases. — No person charged with treason shall be convicted
unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Accused-appellant argues that it was improbable for a brutal killing to have been committed without the children who
were playing about eight to ten meters from Amparo Domantay's grove, where the crime took place, having heard
any commotion. 45 The contention has no merit. Accused-appellant could have covered the young child's mouth to
prevent her from making any sound. In fact, Dr. Bandonill noted a five by two inch (5" x 2") contusion on the left side
of the victim's forehead, which he said could have been caused by a hard blunt instrument or by impact as her head
hit the ground. 46 The blow could have rendered her unconscious, thus precluding her from shouting or crying.
Accused-appellant also contends that the testimony of Jiezl Domantay contradicts that of Lorenzo Domantay
because while Jiezl said she had seen accused-appellant walking towards the bamboo grove, followed by the victim,
at around 2 o'clock in the afternoon on October 17, 1996. Lorenzo said he saw accused-appellant standing near the
bamboo grove at about the same time.

These witnesses, however, did not testify concerning what they saw exactly the same time. What they told the court
was what they had seen "at around" 2 o'clock in the afternoon. There could have been a between difference in time,
however little it was, between the time Jiezl saw accused-appellant and the victim walking and the time Lorenzo saw
accused-appellant near the place where the victim's body was later found. Far from contradicting each other, these
witnesses confirmed what each had said each one saw. What is striking about their testimonies is that while Jiezl said
she saw accused-appellant going toward the bamboo grove followed by the victim "at around" 2 o'clock in the
afternoon on October 17, 1996, Lorenzo said he had seen accused-appellant near the bamboo grove "at around" that
time. He described accused-appellant as nervous and worried. There is no reason to doubt the claim of these
witnesses. Lorenzo is a relative of accused-appellant. There is no reason he would testified falsely against the latter.
Jiezl, on the other hand, is also surnamed Domantay and could also be related to accused-appellant and has not
been shown to have any reason to testify falsely against accused-appellant. At the time of the incident, she was only
10 years old.

For the foregoing reasons, the Court is convinced of accused-appellant's guilt with respect to the killing of the child. It
is clear that the prosecution has proven beyond reasonable doubt that accused-appellant is guilty of homicide. Art.
249 of the Revised Penal Code provides:

Any person who, not falling within the provisions of Article 246 [parricide] shall kill another without
the attendance of any of the circumstances enumerated in the next preceding article [murder], shall
be deemed guilty of homicide and be punished by reclusion temporal.

The killing was committed with the generic aggravating circumstance of abuse of superior strength. The record shows
that the victim, Jennifer Domantay, was six years old at the time of the killing. She was a child of small build, 46" in
height. 47 It is clear then that she could not have put up much of a defense against accused-appellant's assault, the
latter being a fully grown man of 29 years. Indeed, the physical evidence supports a finding of abuse of superior
strength: accused-appellant had a weapon, while the victim was not shown to have had any; there were 38 stab
wounds; and all the knife wounds are located at the back of Jennifer's body.

But we think the lower court erred in finding that the killing was committed with cruelty. 48 The trial court appears to
have been led to this conclusion by the number of wounds inflicted on the victim. But the number of wounds is not a
test for determining whether there was circumstance. 49 "The rest . . . is whether the accused deliberately and
sadistically augmented the victim's suffering thus . . . there must be proof that the victim was made to agonize before
the [the accused] rendered the blow which snuffed out [her] life." 50 In this case, there is no such proof of cruelty. Dr.
Bandonill testified that any of the major wounds on the victim's back could have caused her death as they penetrated
her heart, lungs and liver, kidney and intestines. 51

Second. There is, however, no sufficient evidence to hold accused-appellant guilty of raping Jennifer Domantay. Art.
335. of the Revised Penal Code, as amended, in part provides:

Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances.

1. By using force or intimidation;

2. When the woman is deprive of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

As the victim here was six years old, only carnal knowledge had to be proved to establish rape. Carnal
knowledge is defined as the act of a man having sexual intercourse or sexual bodily connections with a
woman. 52 For this purpose, it is enough if there was even the slightest contact of the male sex organ with
the labia of the victim's genitalia. 53 However, there must be proof, by direct or indirect evidence, of such
contact.
Dr. Ronald Bandonill's report on the genital examination he had performed on the deceased reads: 54

GENITAL EXAMINATION; showed a complete laceration of the right side of the hymen. The
surrounding genital area shows signs of inflammation.

xxx xxx xxx

REMARKS: 1) Findings at the genital area indicate the probability of penetration of that area by a
hard, rigid instrument.

Hymenal laceration is not necessary to prove rape; 55 neither does its presence prove its commission. As held
in People v. Ulili, 56 a medical certificate or the testimony of the physician is presented not to prove that the victim was
raped but to show that the latter had lost her virginity. Consequently, standing alone, a physician's finding that the
hymen of the alleged victim was lacerated does not prove rape. It is only when this is corroborated by other evidence
proving carnal knowledge that rape may be deemed to have been established. 57

This conclusion is based on the medically accepted fact that a hymenal tear may be caused by objects other than the
male sex organ 58 or may arise from other causes. 59 Dr. Bandonill himself admitted this. He testified that the right side
of the victim's hymen had been completely lacerated while the surrounding genital area showed signs of
inflammation. 60 He opined that the laceration had been inflicted within 24 hours of the victim's death and that the
inflammation was due to a trauma in that area. 61 When asked by the private prosecutor whether the lacerations of
the hymen could have been caused by the insertion of a male organ he said this was possible. But he also said when
questioned by the defense that the lacerations could have been caused by something blunt other than the male
organ. Thus, he testified: 62

PROS. F. QUINIT:

Q Now, what might have caused the complete laceration of the right side of the
hymen, doctor?

A Well, sir, if you look at my report there is a remark and it says there; findings at
the genital area indicated the probability of penetration of that area by a hard
rigid instrument.

Q Could it have been caused by a human organ?

A If the human male organ is erect,  fully erect and hard then it is possible, sir.

x x x           x x x          x x x

ATTY. VALDEZ:

Q In your remarks; finding at the genital area indicates the probability of

penetration of that area by a hard rigid instrument, this may have also been
caused by a dagger used in the killing of Jennifer Domantay is that correct?

A Well, sir when I say hard rigid instrument it should not be sharp pointed and
share rigid, it should be a hard bl[u]nt instrument.

Q Do you consider a bolo a bl[u] instrument, or a dagger?

A The dagger is a sharp rigid but it is not a bl[u]nt instrument, sir.

Q This Genital Examination showed a complete laceration of the right side of the
hymen, this may have been possibly caused by a dagger, is it not?
 A No, sir. I won't say that this would have been caused by a dagger, because a
dagger would have made at its incision . . . not a laceration, sir.

Q But this laceration may also have been caused by other factors other the
human male organ, is that correct?

A A hard bl[u]nt instrument, sir could show.

Q My question is other than the human male organ?

A Possible, sir.

x x x           x x x          x x x

COURT:

Q You mentioned that the hymen was lacerated on the right side?

A Yes, your Honor.

Q And if there is a complete erection by a human organ is this possible that the
laceration can only be on the right side of the hymen?

A Yes, your Honor, its possible.

Q How about if the penetration was done by a finger, was it the same as the
human organ?

A Well, it defends on the size of the finger that penetrat[es] that organ, if the
finger is small it could the superficial laceration, and if the finger is large then it is
possible your honor.

Q How about two fingers?

A Possible, sir.

To be sure, this Court has sustained a number of convictions for rape with homicide based on purely circumstantial
evidence. In those instances, however, the prosecution was able to present other tell-tale signs of rape such as the
location and description of the victim's clothings, especially her undergarments, the position of the body when found
and the like. 63 In People v. Macalino, 64 for instance, the Court affirmed a conviction for the rape of a two-year old
child on the basis of circumstantial evidence. 65

The Court notes that the testimony or medical opinion of Dr. Gajardo that the fresh laceration had
been produced by sexual intercourse is corroborated by the testimony given by complainant.
Elizabeth that when she rushed upstairs upon hearing her daughter suddenly cry out, she found
appellant Macalino beside the child buttoning his own pants and that she found some sticky fluid on
the child's buttocks and some blood on her private part.(Emphasis in the original)

In contrast, in the case at bar, there is no circumstantial evidence from which to infer that accused-appellant sexually
abused the victim. The only circumstance from which such inference might be made is that accused-appellant was
seen with the victim walking toward the place where the girl's body was found. Maybe he raped the girl. Maybe he did
not. Maybe he simply inserted a blunt object into her organ, thus causing the lacerations in the hymen. Otherwise,
there is no circumstance from which it might reasonably be inferred that he abused her, e.g., that he was zipping up
his pants, that there was spermatozoa in the girl's vaginal canal.
Indeed, the very autopsy report of Dr. Bandonill militates against the finding of rape. In describing the stab wounds on
the body of the victim, he testified: 66

[A]fter examining the body I took note that were several stab wounds . . . these were all found at
the back area sir . . . extending from the back shoulder down to the lower back area from the left to
the right.

Considering the relative physical positions of the accused and the victim in crimes of rape, the usual location
of the external bodily injuries of the victim is on the face, 67 neck, 68 and anterior portion 69 of her body.
Although it is not unnatural to find contusions on the posterior side, these are usually caused by the
downward pressure on the victim's body during the sexual assault.70 It is unquestionably different when, as
in this case, all the stab wounds (except for a minor cut in the lower left leg) had their entry points at the
back running from the upper left shoulder to the lower right buttocks.

It is noteworthy that the deceased was fully clothed in blue shorts and white shirt when her body was immediately
after it was found. 71 Furthermore, there is a huge bloodstain in the back portion of her shorts. 72 This must be
because she wearing this piece of clothing when the stab wounds were inflicated or immediately thereafter, thus
allowing the blood to seep into her shorts to such an extent. As accused-appellant would naturally have to pull down
the girl's lower garments in order to consummate the rape, then, he must have, regardless of when the stab wounds
were inflicted, pulled up the victim's shorts and undergarments after the alleged rape, otherwise, the victim's shorts
would not have been stained so extensively. Again, this is contrary to ordinary human experience.

Even assuming that Jennifer had been raped, there is no sufficient proof that it was accused-appellant who had raped
her. He did not confess to having raped the victim.

From the foregoing, we cannot find that accused-appellant also committed rape. In the special complex crime of rape
with homicide, both the rape and the homicide must be established beyond reasonable doubt. 73

Third. The trial court ordered accused-appellant to pay the heirs of Jennifer Domantay the amount of P30,000.00 as
actual damages. However, the list of expenses produced by the victim's father, Jaime Domantay, only totaled
P28,430.00. Of this amount, only P12,000.00 was supported by a receipt. Art. 2199 of the Civil Code provides that a
party may recover actual or compensatory damages only for such loss as he has duly proved. Therefore, the award
of actual damages should be reduced to P12,000.00.

In addition, the heirs of Jennifer Domantay are entitled to recover exemplary damages in view of the presence of the
aggravating circumstance of abuse of superior strength. Art. 2230 of the Civil Code provides for the payment of
exemplary damages when the crime is committed with one or more aggravating circumstance. An amount of
P25,000.00 is deemed appropriate. 74

In accordance with our rulings in People v. Robles  75 and People v. Mengote, 76 the indemnity should be fixed at
P50,000.00 and the moral damages at P50,000.00. 77

WHEREFORE, the judgment of the trial court is SET ASIDE and another one is rendered FINDING accused-
appellant guilty of homicide with the aggravating circumstance of abuse of superior strength and sentencing him to a
prison term of 12 years of  prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and
ORDERING him to pay the heirs of Jennifer Domantay the amounts of P50,000.00, as indemnity, P50,000.00, as
moral damages, P25,000.00, as exemplary damages, and P12,000.00, as actual damages, and the
costs.1âwphi1.nêt

SO ORDERED.
 5. G.R. No. 79543 October 16, 1996

JOSE D. FILOTEO, JR., petitioner,

vs.
SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

PANGANIBAN, J.:p

A person under investigation for the commission of an offense is constitutionally guaranteed certain rights. One of the
most cherished of these is the right "to have competent and independent counsel preferably of his choice". The 1987
Constitution, unlike its predecessors, expressly covenants that such guarantee "cannot be waived except in writing
and in the presence of counsel". In the present case, petitioner claims that such proscription against an uncounselled
waiver of the right to counsel is applicable to him retroactively, even though his custodial investigation took place in
1983 — long before the effectivity of the new Constitution. He also alleges that his arrest was illegal, that his
extrajudicial confession was extracted through torture, and that the prosecution's evidence was insufficient to convict
him. Finally, though not raised by petitioner, the question of what crime —- brigandage or robbery — was committed
is likewise motu proprio addressed by the Court in this Decision.

Challenged in the instant amended petition is the Decision 1 of respondent Sandiganbayan 2 in Criminal Case No.
8496 promulgated on June 19, 1987 convicting petitioner of brigandage, and the Resolution 3 promulgated on July
27, 1987 denying his motion for reconsideration.

The Facts

Petitioner Jose D. Filoteo, Jr. was a police investigator of the Western Police District in Metro Manila, an old hand at
dealing with suspected criminals. A recipient of various awards and commendations attesting to his competence and
performance as a police officer, he could not therefore imagine that one day he would be sitting on the other side of
the investigation table as the suspected mastermind of the armed hijacking of a postal delivery van.

Along with his co-accused Martin Mateo, Jr. y Mijares, PC/Sgt. Bernardo Relator, Jr. y Retino, CIC Ed Saguindel y
Pabinguit, Ex-PC/Sgt. Danilo Miravalles y Marcelo and civilians Ricardo Perez, Reynaldo Frias, Raul Mendoza, Angel
Liwanag, Severino Castro and Gerardo Escalada, petitioner Filoteo was charged in the following Information: 4

That on or about the 3rd day of May, 1982, in the municipality of Meycauayan, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, two of whom were
armed with guns, conspiring, confederating together and helping one another, did then and there
wilfully, unlawfully and feloniously with intent of gain and by means of violence, threat and
intimidation, stop the Postal Delivery Truck of the Bureau of Postal while it was travelling along the
MacArthur Highway of said municipality, at the point of their guns, and then take, rob and carry
away with them the following, to wit:

1) Postal Delivery Truck

2) Social Security System Medicare Checks and Vouchers

3) Social Security System Pension Checks and Vouchers

4) Treasury Warrants

5) Several Mail Matters from abroad

in the total amount of P253,728.29 more or less, belonging to US Government Pensionados, SSS
Pensionados, SSS Medicare Beneficiaries and Private Individuals from Bulacan, Pampanga,
Bataan, Zambales and Olongapo City, to the damage and prejudice of the owners in the
aforementioned amount.

Contrary to law

On separate dates, accused Filoteo, Mateo, Saguindel, Relator and Miravalles, assisted by their respective counsel,
pleaded not guilty. Their co-accused Perez, Frias, Mendoza, Liwanag, Castro and Escalada were never arrested and
remained at large. Accused Mateo escaped from police custody and was tried in absentia in accordance with Article
IV, Section 19 of the 1973 Constitution. Accused Saguindel and Relator failed to appear during the trial on February
21, 1985 and on March 31, 1986, respectively, and were thus ordered arrested but remained at large since then. Like
in the case of Mateo, proceedings against them were held in absentia. 5 Only Filoteo filed this petition, after the
respondent Court rendered its assailed Decision and Resolution.

Before trial commenced and upon the instance of the prosecution for a stipulation of facts, the defense admitted the
following: 6

The existence of the bound record of Criminal Case No. 50737-B-82, consisting of 343 pages from
the Bulacan CFI (Exhibit A); in 1982 or thereabouts, accused Bernardo Relator was a PC Sergeant
at Camp Bagong Diwa, Bicutan, Metro Manila; as such PC Sergeant, accused Relator was issued
a service revolver, Smith & Wesson Revolver, 32 (sic), with Serial No. 11707 (Exhibit B) and
holster (Exhibit B-1) with six (6) live ammo (Exhibit B-2); in 1982 or thereabouts, accused Eddie
Saguindel was a PC Constable First Class; on May 30, 1982, accused Saguindel, together with
accused Relator and Danilo Miravalles, a former PC Sergeant, was invited for investigation in
connection with the hijacking of a delivery van by the elements of the Special Operations Group,
PC, and the three availed of their right to remain silent and to have counsel of their choice, as
shown by their Joint Affidavit (Exhibit A-20); and the existence of the sworn statement executed by
accused Martin Mateo (Exhibit A-11) as well as the Certification dated May 30, 1982, subject to the
qualification that said document was made under duress.

The prosecution sought to prove its case with the testimonies of Bernardo Bautista, Rodolfo Miranda, Capt. Rosendo
Ferrer, M/Sgt. Noel Alcazar and Capt. Samuel Pagdilao, Jr. 6-a and the submission of Exhibits A to K. In their
defense, accused Filoteo and Miravalles presented their respective testimonies plus those of Gary Gallardo and
Manolo Almogera. Filoteo also submitted his Exhibits 1-14-Filoteo, but Miravalles filed no written evidence.
Thereafter, the prosecution proffered rebuttal evidence and rested with the admission of Exhibits A-16-a, A-31 and L.

Evidence for the Prosecution

At about 6:30 in the morning of May 3, 1982, Bureau of Post mail van no. MVD 02 left San Fernando, Pampanga to
pick up and deliver mail matters to and from Manila. On board the vehicle were Nerito Miranda, the driver, and two
couriers named Bernardo Bautista and Eminiano Tagudar who were seated beside the driver. They arrived at around
9:40 that morning at the Airmail Distribution Center of the Manila International Airport where they were issued
waybills 7 for the sacks of mail they collected. They then proceeded to the Central Post Office where they likewise
gathered mail matters including 737 check letters 8 sent by the United States Embassy. All the mail matters were
placed inside the delivery van, and its door padlocked.

As they had to deliver mail matters to several towns of Bulacan, they took the MacArthur Highway on the return trip to
Pampanga. When they reached Kalvario, Meycauayan, Bulacan at about 4:30 in the afternoon, an old blue Mercedes
Benz sedan9 overtook their van and cut across its path. The car had five (5) passengers — three seated in front and
two at the back. The car's driver and the passenger beside him were in white shirts; the third man in front and the
person immediately behind him were both clad in fatigue uniforms, while the fifth man in the back had on a long-
sleeved shirt. 10

Two of the car passengers aimed an armalite and a hand gun at driver Nerito Miranda as someone uttered, "Are you
not going to stop this truck?" 11 Frightened, Miranda pulled over and stopped the van's engine. Alighting from the car,
the armed group identified themselves as policemen. 12 They ordered the postal employees to disembark from the
van. As he stepped out of the van, Miranda took the ignition key with him, but when threatened, he surrendered it to
one of the car passengers. 13 The three postal employees were then ordered to board the Benz.

As he was about to enter the car, Bautista looked back and saw one of the malefactors, who turned out to be
Reynaldo Frias, going up the van. Inside the car, the three delivery employees were ordered to lower their heads.
They sat between two of their captors at the back of the car while two others were in front. Later, Nerito Miranda
asked permission to straighten up as he was feeling dizzy for lack of air. As he stretched, he caught a glimpse of the
pimply face of the man to his left. He also recognized the driver who had glanced back. These men turned out to be
Angel Liwanag and Reynaldo Frias, respectively. 14

As the car started moving, Bautista complained about feeling "densely confined." We was allowed to raise his head
but with eyes closed. However, he sneaked a look and recognized the driver of the car as Raul Mendoza and the
fellow beside him who poked a "balisong" at him as Angel Liwanag. The man in uniform on the front seat was Eddie
Saguindel. Earlier, as he was about to enter the car, Bautista looked back and recognized Frias. 15 These incidents
yielded the pieces of information critical to the subsequent identification of Mendoza, Liwanag, Saguindel and Frias in
the line-up of suspects at Camp Crame later on.

The car seemed to move around in circles. When it finally came to a stop, the captured men discovered that they
were along Kaimito Road in Kalookan City They were made to remove their pants and shoes and then told to run
towards the shrubs with their heads lowered. Upon realizing that the hijackers had left, they put on their pants and
reported the incident to the Kalookan Police Station.

The Security and Intelligence Unit of the Bureau of Posts recovered the postal van at the corner of Malindang and
Angelo Streets, La Loma, Quezon City on May 4, 1982. Discovered missing were several mail matters, 16 including
checks and warrants, along with the van's battery, tools and fuel. 17

In a letter-request dated May 6, 1982 to then Col. Ramon Montaño, then Postmaster General Roilo S. Golez sought
the assistance of the Special Operations Group (SOG) of the Philippine Constabulary in the investigation of the
hijacking incident. 18 Responding to the request, the SOG, which was tasked to detect, investigate and "neutralize"
criminal syndicates in Metro Manila and adjacent provinces, organized two investigative teams. One group was led by
Capt. Rosendo Ferrer and the other by 1st Lt. Samuel Pagdilao. Initially, they conducted a "massive intelligence
build-up" to monitor the drop points where the stolen checks could be sold or negotiated.

On May 28, 1982, the SOG received a tip from a civilian informer that two persons were looking for buyers of stolen
checks. Capt. Ferrer requested the informer to arrange a meeting with them. The meeting materialized at about 9:00
P.M. of May 29, 1982 at the Bughaw Restaurant in Cubao, Quezon City. With cash on hand, Capt. Ferrer posed as
the buyer. The informer introduced him to Rey Frias and Rafael Alcantara. Frias in turn showed Capt. Ferrer a
sample Social Security System (SSS) pension check and told him that the bulk of the checks were in the possession
of their companions in Obrero, Tondo, Manila. After some negotiations, they agreed to proceed to Tondo. Then as
they boarded a car, Capt. Ferrer introduced himself and his companions as lawmen investigating the hijacking
incident. Shocked and distressed, Frias calmed down only when assured that his penalty would be mitigated should
he cooperate with the authorities. Frias thus volunteered to help crack the case and lead the SOG team to Ricardo
Perez and Raul Mendoza.

Capt. Ferrer instructed Lt. Pagdilao, his assistant operations officer who was in another car during the mission, to
accompany Frias to Obrero Tondo while he escorted Alcantara to their headquarters at Camp Crame. On the way to
the headquarters, Alcantara denied participation in the hijacking although he admitted living with Martin Mateo who
allegedly was in possession of several checks. Alcantara was turned over to the investigation section of the SOG for
further questioning.

Meanwhile, Lt. Pagdilao's group was able to corner Ricardo Perez in his house in Tondo. Confronted with the
hijacking incident, Perez admitted participation therein and expressed disappointment over his inability to dispose of
the checks even after a month from the hijacking. He surrendered the checks in his possession to Lt. Pagdilao.'s. 19

An hour and a half later, Capt. Ferrer received information over their two-way radio that Ricardo Perez and Raul
Mendoza were in Lt. Pagdilao's custody. Capt. Ferrer ordered that, instead of returning to headquarters, Lt. Pagdilao
and his companions should meet him in Quirino, Novaliches to apprehend Martin Mateo. They met at the designated
place and proceeded to Gulod, Novaliches arriving there at about 10:30 P.M. of May 29, 1982.

Walking atop a ricefield dike to the house of Mateo, they noticed two men heading in their direction. Perez identified
them as Martin Mateo and Angel Liwanag. The latter threw something into the ricefield which, when retrieved, turned
out to be bundles of checks wrapped in cellophane inside a plastic bag. 20 As the two were about to board the SOG
teams's car, Mateo said, "Sir, Kung baga sa basketball, talo na kami. Ibibigay ko yong para sa panalo. Marami pa
akong tseke doon sa bahay ko, sir, kunin na natin para di na natin
babalikan." 21 Capt. Ferrer accompanied Mateo to his house where they retrieved several other checks in another
plastic bag.

On the way to the SOG headquarters in Camp Crame, Mateo and Liwanag admitted participation in the postal
hijacking. At a confrontation with Perez and Mendoza, all four of them pointed to petitioner, Jose D. Filoteo, Jr., as the
mastermind of the crime.

Consequently, Capt. Ferrer directed Lt. Pagdilao to accompany Mateo to the house of petitioner in Tondo, Manila.
The lawmen found petitioner at home. Upon being invited to Camp Crame to shed light on his participation in the
hijacking, petitioner was dumbfounded ("  parang nagulat). Pursuant to standard operating procedure in arrests,
petitioner was informed of his constitutional rights, 22 whereupon they proceeded to Camp Crame. However, the
group, including petitioner, returned to the latter's place to recover the loot. It was "in the neighborhood," not in
petitioner's house, where the authorities located the checks. 23

The authorities confronted Filoteo about his participation in the hijacking, telling him that Frias, Mendoza and Perez
had earlier volunteered the information that petitioner furnished the Benz used in the hijacking. Thereupon, Filoteo
admitted involvement in the crime and pointed to three other soldiers, namely, Eddie Saguindel, Bernardo Relator
and Jack Miravalles (who turned out to be a discharged soldier), as his confederates. At 1:45 in the afternoon of May
30, 1982, petitioner executed a sworn statement in Tagalog before M/Sgt. Arsenio C. Carlos and Sgt. Romeo P.
Espero which, quoted in full, reads as follows:

BABALA — Nais kong ipaalam sa iyo,

Patrolman Filoteo, na ang dahilan ng
pagsisiyasat na ito ay tungkol sa isang
kasong Robbery-in-Band/Hi-Jacking na
naganap noong ika-3 ng Mayo 1982 doon sa
Meycauayan, Bulacan, mga bandang alas-
4:00 ng hapon, humigit-kumulang, kung
saang maraming tsekeng US, tseke ng BIR
at iba pang mga personal na tseke ang
 nabawi mula sa iyo. Nais ko ring ibigay sa
iyo ang babala alinsunod sa mga isinasaad
ng Section 20, Article IV ng Bagong Saligang
Batas ng Republika ng Pilipinas, kagaya ng
mga sumusunod:

a. Na ikaw ay may karapatang tumahimik;

b. Na ikaw ay may karapatang kumuha ng isang abugadong sarili mong pili upang may magpapayo
sa iyo habang ikaw ay sinisiyasat;

c. Na ikaw ay may karapatang huwag sumagot sa mga katanungang maaring makasira sa iyo sa
dahilang anumang iyong isasalaysay ay maaring gamitin pabor or laban sa iyo sa kinauukulang
hukuman;

d. Na kung ikaw ay walang maibabayad sa isang abugado, ako mismo ang makipag-ugnayan sa
CLAO-IBP upang ikaw ay magkaroon ng isang abugadong walang bayad.

1. TANONG: — Ang mga bagay-bagay bang akin nang naipaliwanag sa iyo ay

iyong lubos na naiintindihan at nauunawaan?

SAGOT: —Opo.

2. T: — Handa mo bang lagdaan ang ilalim ng katanungan at sagot na ito bilang

katibayan na iyo ngang naiintindihan ang iyong mga karapatan at gayun na rin sa
dahilan ng pagsisiyasat na ito, at ikaw din ay nakahanda ngang magbigay ng
isang malaya at kusang-loob na salaysay, sumagot sa mga katanungan at
sumusumpang lahat ng iyong isasalaysay ay pawang mga katotohanan lamang?

S: — Opo, pipirma ako Ser.

(Sgd.)
JOSE D.
FILOTE
O
(Affiant)

MGA SAKSI:

(Sgd.) (Sgd.)
ROMEO P. ESPERO THERESA L. TOLENTINO
Ssg., PC C1C, WAC (PC)

3. T: — Maari bang sabihin mong mull ang iyong buong pangalan, edad at iba
pang bagay-bagay na maaring mapagkakikilalanan sa iyo?

S: — Jose Filoteo y Diendo, 30-anyos, may-asawa, isang Patrolman ng Western

Police District, Metropolitan Police Force na kasalukuyang nakatalaga sa
General Assignment Section, Investigation Division ng naturang Distrito ng
Pulisya at kasalukuyang nakatira sa No. 810 Cabesas St., Dagupan, Tondo,
Manila.

4. T: — Kailan ka pa na-appoint sa service bilang isang Kabatas?

S: — Noon pong October 1978, hindi ko maalaala ang exactong petsa, noong
ako ay mapasok sa serbisyo.
5. T: — Kailan ka pa naman na-assign sa GAS, WPD, MPF?

S: — Noon lamang pong January 1982.

6. T: — Patrolman Filoteo, ikaw ba ay tubong saang bayan, lungsod or

lalawigan?

S: — Pagkakaalam ko sa tatay ko ay Bulacan samantalang ang aking ina naman

ay Bisaya, pero ako ay ipinanganak na sa Maynila noon July 17, 1951.

7. T: — Ano naman ang natapos mong kurso sa pag-aaral?

S: — Undergraduate ako ng BS Criminology sa PCCr, dahil hindi ko natapos ang

second semester ng 4th year ko.

8. T: — Ano naman ang iyong specific designation sa GAS, ID, WPD-MPF?

S: — Sa Follow-Up Unit ako.

9. T: — At bilang miyembro ng follow-up unit no GAS, ano naman ang iyong mga
specific duties?

S: — Kami po ang magsasagawa ng follow-up kung may mga at-large sa mga

suspects namin sa mga kasong hawak ng investigation.

10. T: — Noong ika-3 ng Mayo 1982, mga bandang alas-4:00 ng hapon humigit-
kumulang, saan ka naroroon at ano ang iyong ginagawa?

S: — Nasa Plaza Lawton ho kami, eh, at inaantay na namin iyong hi-nayjack

namin na Philippine Mail delivery van.

11. T: — Wika mo'y kami, sinu-sino ang tinutukoy mong mga kasamahan?

S: — Si Carding Perez, ho; si Junior ho (Affiant pointed to Martin Mateo, Jr. who
was seated in the investigation room and asked the name and was duly
answered: Martin Mateo, Jr.); si Rey Frias, Raul Mendoza; Angelo Liwanag at
ang mga taga LRP ng PC Brigade na sina Sgt. Ed Saguindel, Sgt. Dan Miravales
at isa pang Sergeant na ang alam ko lang sa kanya ay JUN ang tawag namin.
Walo (8) (corrected and initialled by affiant to read as "SIYAM [9]") kaming lahat
doon noon at ang mga gamit naman naming kotse noon ay ang kotse ng
kumpare kong si Rudy Miranda na isang Mercedes Benz na may plakang NMJ-
659 kung saang ang driver namin noon ay si Raul Mendoza (corrected and
initialled by affiant to read as "AKO") at ang mga kasama naman naming sakay
ay sina Angelo Liwanag, Sgt. Ed Saguindel at Sgt. Jun na parehong taga-LRP
(affiant added and initialled this additional fact: "AT RAUL MENDOZA"). Ang
isang kotse namang gamit namin ay pag-aari daw ng pinsan ni Carding Perez na
kanya na rin mismong minaneho na isang Lancer na dirty-white ang kulay at ang
mga sakay naman ni Carding Perez ay sina Junior Mateo, Rey Frias at Sgt. Dan
Miravalles ng LRP rin. Pero may kasama pa kaming contact ni Carding Perez na
taga-loob ng Post Office na sina Alias  NINOY na isang dispatcher
at Alias  JERRY, dahil ang mastermind dito sa trabahong ito ay si Carding
PEREZ at kami naman ng mga sundalong taga-LRP ay kanila lamang inimporta
upang umeskort sa kaniia sa pag-hijack ng delivery van.

12. T: — Anong oras naman noong umalis ang delivery van ng Post Office
patungong norte?
S: — Kung hindi ako nagkakamali ay nasa pagitan na noon ng alas- 4:00
hanggang alas-5:00 ng hapon.

13. T: — Isalaysay mo nga ng buong-buo kung ano ang mga naganap noong
hapon na iyon?

S: — Noon pong lumakad na ang delivery van ng Central Post Office, sinundan
na namin, una ang van, sumunod ang Lancer at huli ang Mercedes Benz namin.
Pagdating namin sa Malinta, Valenzuela Metro Manila ay nagpalit kami ng
puwesto sa pagsunod, van naman ngayon, sunod ang Mercedes Benz at huli na
ang Lancer. Noong makapasok na kami ng boundary ng Meycauayan, Bulacan
ay kumuha na kami ng tiyempo at noon makatiyempo kami ay kinat namin ang
delivery van. Tumigil naman ito at bumaba kaagad sina Sgt. Ed Saguindel at Sgt.
Jun ng LRP datiil sila noon ang may hawak ng kanilang Armalite Rifle pero may
service pa silang maiksing baril. Pinababa nila ang tatlong maydala ng delivery
van at pinasakay sa Mercedes Benz, habang nakatutok ang kanilang mga baril
sa kanila. Ako naman ay bumaba na sa aming kotse at sumakay ng delivery van
at ako na mismo ang nagmaneho at sinamahan naman ako nina Junior Mateo at
si Rey Frias, tatlo (3) rin kaming pumalit sa puwesto noong tatlong (3) taga-Post
Office na maydala ng delivery van. Nag-Utturn (sic) kami ngayon at ibinalik na
namin sa Manila ang van. Iyong Mercedes Benz na minaneho pa rin ni Raul
Mendoza ay dumeretso pa norte samantalang ang Lancer naman ay nag-U-turn
din at sumunod sa amin. Noong makarating na kami sa Malinta, Valenzuela,
Metro Manila ay inunahan na kami ng Lancer at iyon na nga, parang follow the
leader na dahil siya na noon ang aming guide.

14. T: — Ipagpatuloy mo ang iyong pagsasalaysay?

S: — Dumeretso kami ngayon sa may Obrero, sa bahay mismo nina Carding

Perez, at noong nakarating na kami roon ay iniyatras ko na ang van sa kaniling
garahe at doon ay ibinaba namin lahat ang mga duffle bag, hindi ko na ho alam
kung ilan lahat iyon, na siyang laman ng delivery van at pagkatapos ay umalis
kaming muli ng mga kasama ko rin sa van papuntang Quezon City kung saan
namin inabandon ang delivery van. Sa Retiro ho yata iyong lugar na iyon, kung
hindi ako nagkakamali.

15. T: — Ano ang mga sumunod na nangyari?

S: — Sumakay kami ngayon ng taksi at bumalik na kami kina Carding Perez sa

may bahay nila sa Obrero, Tondo, Manila at inabutan na namin sila na
nagkakarga na noong mga duffle bag sa (sic), madilim na ho noon, sa isang
kotseng mamula-mula o orange na Camaro at isa pang Mercedes Benz na
brown, dahil ang Lancer ay isinoli na raw nila sa may-ari. Dinala nila ngayon ang
mga duffle bag sa Bocaue, Bulacan, iyon kasi ang usapan namin noon dahil
sumilip lamang ako noon at kasama ko si Carding Perez, kami naman ngayon ay
pumunta sa bahay nina Rudy Miranda sa San Marcelino, Malate, Manila na
sakay ng isang Toyota Corona na brown na si Carding Perez ang nagmaneho.
Pagdating namin doon sa kina Rudy Miranda ay naroon na rin noon ang
Mercedes Benz na ginamit namin, pero wala na ang crew ng delivery van dahil
ibinaba at iniwanan daw nila sa Caloocan City. Ang naroroon na lamang noon ay
sina Angelo Liwanag, si Raul Mendoza, si Sgt. Ed Saguindel at si Sgt. Jun na
parehong taga-LRP. Naiwan na noon ang Mercedes Benz namin doon kina Rudy
Miranda at iniwan na rin ang susi doon sa kamag-anak, dahil hindi nila alam ang
trabahong ito. Sumakay na iyong apat naming kasama sa Toyota Corona na
sakay namin at inihatid namin sina Sgt. Saguindel at Sgt. Jun doon sa tinitirhan
nitong huling nabanggit na sundalo doon sa malapit sa Del Pan Bridge sa may
Recto Avenue sa San Nicolas yata iyon sa Manila. Kami naman ngayong apat,
sina Carding Perez, Angelo Liwanag at si Raul Mendoza ay tumuloy na sa
Bocaue, Bulacan. Dumaan kami sa North Diversion Road at paglabas namin sa
exit papuntang Bocaue, Bulacan ay hindi na kalayuan doon, hindi ko alam ang
lugar pero alam kong puntahan. Bahay daw yata ng kamag-anak ni Carding
Perez iyon pero hindi ko alam ang pangalan. Naroon na ngayon ang buong
tropa, maliban sa mga dalawang sundalong naihatid na namin sa may Manila, at
may mga nadagdag pang ibang mukha pero hindi ko ito mga kakilala. Si JACK o
Sgt. Dan Miravalles ay naroon din noon. Kumain kami, pagkatapos ay
nagbukasan na ng mga duffle bag. Iyon na nga, nakita na namin ang mga
tsekeng ito, (Affiant pointed to the checks he voluntarily surrendered) at aming
inihiwalay ngayon sa mga sulat na naroon na sinunog lahat pagkatapos doon sa
bahay ni Junior Mateo sa Novaliches. Di magdamag ngayon ang trabaho namin,
kinabukasan ay kanya-kanyang uwian na, pagkatapos ay pahinga. Kinabukasan
mull, gabi, inilipat na namin doon sa bahay ni Junior Mateo ang mga tsekeng ito
(Affiant again referred to said checks). Isinakay namin noon sa isang cargo truck
na pag-aari din daw nina Carding. lyong mga tsekeng iyan ngayon ay nakalagay
noon doon sa isang sikretong compartment sa gitna ng truck, doon ba sa may
chassis. Sikretong compartment iyon, na mahirap mahalata.

16. T: — Ikaw ba naman ay mayroong dalang baril noon at kung ganoon, sabihin
mo nga kung anong uring baril iyon?

S: — Wala po akong baril, Ser.

17. T: — Paano naman napunta ang mga tsekeng ito (the checks recovered from
the Affiant was referred to) sa iyo?

S: — E, di ganoon na nga he, habang tumatagal ay umiinit ang situwasyon sa

aming grupo, dahil iyong partehan sana namin ay puro pangako ang nangyari.
Kaya napagpasyahan namin na hatiin na lamang iyong mga tseke upang walang
onsehan sa amin. Ito ngayon ay parte namin nina Sgt. Ed Saguindel, Sgt. Dan
Miravalles Alias JACK at ni Sgt. Jun, dahil noong una ay doon muna sa amin ito
nakatago (The checks recovered from the Affiant was referred to). Pero habang
tumatagal ay umiinit at nalaman namin pati na may alarma na, kaya't inilipat
namin doon sa may Raxa Bago sa may likod ng Alhambra Cigar & Cigarette
Factory sa Tondo, Manila at akin munang ipinatago sa isang kumare ko doon,
pansamantala, pero hindi alam nitong kumare ko ang laman noon dahil mahigpit
kong ipinagbilin na huwag nilang bubuksan. Doon na rin namin kinuha iyon
noong isurender ko ang mga tsekeng ito kagabi, at hanggang sa kinuha na
namin ang supot na ito (the checks placed in a plastic bag was again referred to)
ay wala pa rin kamalay- malay ang kumare ko.

18. T: — Iyong sinasabi mong mga kontak nina Carding Perez sa Central Post
Office, mga kakilala mo rin ba ang mga ito?

S: — Iyong araw lamang na iyon ko sila nakita, dahil maghapon ko noon silang
nakikita, itong si Alias  NINOY lamang ang dispatcher, dahil palabas-labas siya
noon at nakikipag-usap kina Carding Perez, Raul Mendoza at saka si Rey Frias.
Makikilala ko itong si Alias NINOY kung makita ko siyang muli.

19. T: — Sino naman ang kumontak sa iyo upang sumama sa trabahong ito?

S: — Si Junior Mateo po, ipinakilala niya ako kina Carding at sa buong tropa na
namin.

20. T: — Pansamantala ay wala na muna akong itatanong pa sa iyo, mayroon ka

bang nais na idagdag, bawasin o palitan kaya sa salaysay na ito?

S: — Wala na po.
 21. T: — Handa mo bang lagdaan ang iyong salaysay na ito bilang patotoo sa
katotohanan nito nang hindi ka pinilit, sinaktan or pinangakuan kaya ng anuman
upang lumagda lamang?

S: — Opo.

WAKAS NG SALAYSAY: . . . ./ac

(Sgd)
JOSE D.
FILOTE
O

MGA SAKSI SA LAGDA:

(Sgd.)
SSG ROMEO P. ESPERO PC

(Sgd.)
C1C THERESA TOLENTINO WAC (PC) 24

Petitioner executed two other documents on the same day, May 30, 1982. One was a certification stating that he
voluntarily surrendered "voluminous assorted US checks and vouchers," that because of the "large number of pieces"
of checks, he affixed his signature upon the middle portion of the back of each check "to serve as identification in the
future, prior to the completion of its proper inventory and listing conducted by elements of SOG" in his presence, and
that he "guided the elements of SOG" to the residence of Rodolfo C. Miranda, the owner of the sky-blue Mercedes
Benz car which was surrendered to the SOG Headquarters. 25 The other document was a sworn statement wherein
petitioner attested to his waiver of the provisions of Article 125 of the Revised Penal Code and the following facts: (a)
that he was apprised of his constitutional rights under Section 20, Article IV of the (1973) Constitution, that he
understood all his rights thereunder, and that the investigators offered him counsel from the CLAO-IBP but he refused
to avail of the privilege; (b) that he was arrested by SOG men in his house at around 11:00 p.m. of May 29, 1982" sa
dahilang ako ay kasangkot sa pagnanakaw ng mga US Treasury Warrants, SSS Pension Checks and Vouchers at
SSS Medicare Checks and Vouchers mula sa delivery van ng Philippine Mail;" (c) that the SOG men confiscated
from him numerous checks and a Mercedes Benz 200 colored sky-blue, and (d) that he was not hurt or maltreated
nor was anything taken from him which was not duly receipted
for. 26

As certified to by petitioner (in the above described document), he led the SOG operatives to the house of Rodolfo
Miranda on Singalong where the latter admitted that petitioner was his friend. He denied, however, having knowledge
that his car was used in the hijacking until the authorities came to his house. According to Miranda, he was made to
believe that his car would be used for surveillance purposes because petitioner's jeep was not available. The car was
not returned until the evening following that when it was borrowed. 27 After the trip to Miranda's house, petitioner
informed the investigators that some more checks could be recovered from his kumare. Said checks were retrieved
and turned over to headquarters along with the car surrendered by Miranda who later executed a sworn statement
dated May 31, 1992 at the SOG.28

Upon learning of the whereabouts of Miravalles, Eddie Saguindel and Bernardo Relator, the team of Capt. Ferrer
proceeded to Taguig, Metro Manila in the afternoon of May 30, 1982. They met Miravalles along the way to his
house. Informed by Capt. Ferrer that six of his companions were already under custody and that they implicated him
as one of their confederates, Miravalles reacted by saying, "Sir, ang hihina kasi ng mga loob niyan, eh." 29

Capt. Ferrer later asked Miravalles to bring him to Eddie Saguindel. At the barracks of the Long Range Patrol in
Bicutan, Metro Manila, Saguindel voluntarily accepted the invitation to proceed to the SOG headquarters, after
Miravalles initially informed him of the facts obtained during the investigation. Saguindel was heard saying, "Hindi na
kami interesado, sir, sa mga tsekeng iyan kasi isang buwan na hindi pa nabebenta." 30 With Miravalles and
Saguindel, Capt. Ferrer and his team moved on to Binondo, Manila to look for Bernardo Relator. When they found
him at home, Relator excused himself, went upstairs, returned with a .32 caliber revolver with six bullets  31 and said,
"Sir, ito yong baril na nagamit." 32 The three suspects were brought to Camp Crame for further investigation.
Thereafter, Capt. Ferrer submitted an after-operations report about their mission and executed jointly with Lt.
Pagdilao an affidavit on the same matter. 33

Aside from petitioner, Liwanag, Mateo and Perez executed sworn statements. 34 Prior to doing so, they waived their
right to counsel. Liwanag and Mateo admitted their participation and implicated petitioner in the crime. Perez, on the
other hand, denied having driven a Lancer car in the hijacking and stated that he was implicated in the crime only
because in one drinking spree with petitioner, Mateo and one alias "Buro" during that month of May, they had a
heated altercation. Like petitioner, Liwanag and Mendoza certified that they voluntarily surrendered vouchers and
checks which were part of their loot in the hijacking; they also executed waivers under Article 125 of the Revised
Penal Code. For his part, Relator executed a certification to the effect that he voluntarily surrendered his .32 caliber
Smith & Wesson service revolver used in the commission of the crime. In spite of the fact that his father-in-law was a
lawyer, petitioner did not manifest that he needed the assistance of counsel. During the taking of his statement,
petitioner was visited by Jimmy Victorino and another comrade from the General Assignment Section of the WPD.

For their part, Relator, Saguindel and Miravalles executed a joint affidavit 35 manifesting their option to avail of their
right to remain silent until such time as they would have retained a counsel of their choice. Frias and Mendoza
executed a similar joint affidavit. 36 Severino Castro, the postal employee implicated, also chose to remain silent as he
wanted to testify in court. However, he linked to the crime a certain Gerardo Escalada, a former clerk of the Central
Post Office and son of a director of the Bureau of Posts in Region I. 3 7

On May 31, 1982, then Postmaster General Golez summoned postal employees Miranda, Bautista and Tagudar and
directed them to proceed to Camp Crame. At the office of the SOG, they were told to go over some pictures for
identification of the culprits. The three recognized and pointed to the suspects in a line-up. Tagudar identified
Saguindel and Liwanag. 38 Miranda pointed at Frias and Liwanag 39 while Bautista identified Frias, Mendoza and
Liwanag. 40 Petitioner himself, when told to identify his alleged cohorts, pointed to Severino Castro as their contact at
the post office. 41 Five of the suspects who were not identified in the line-up were however implicated by Liwanag,
Mateo and petitioner.

SOG Chief Investigator Jorge C. Mercado filed a complaint for robbery-in-band (hijacking) before the Municipal Court
of Meycauayan, Bulacan against petitioner and ten (10) others, namely, Mateo, Saguindel, Relator, Miravalles, Perez,
Frias, Mendoza, Liwanag, Castro and Escalada (Criminal Case No. 7885). 42

On August 8, 1983, the Information previously referred to and aforequoted was filed with the Sandiganbayan and
docketed as Criminal Case No. 8496.

On September 20, 1983, Sandiganbayan Associate Justice Romeo M. Escareal issued orders for the arrest of the
accused 43 and fixed bail at P13,000.00 each. Saguindel and Relator filed a motion to quash the Information asserting
that under the Articles of War and Section 1 of P.D. 1850, they should be tried by a court martial. 44 The
Sandiganbayan denied the motion on January 3, 1984 45 on the ground that courts martial could no longer exercise
jurisdiction over them by virtue of their separation from military service.

Evidence for the Defense

Testifying in his own defense, petitioner alleged that as a patrolman since August 21, 1978 assigned to the
Investigation Division or the Detective Bureau of the WPD to which the General Assignment Section belonged, he
was the recipient of several awards and recognitions starting with ranking fifth in the Final Order of Merit in the basic
course for police officers. 46 He also claimed to have received a loyalty medal for meritorious service above the call of
duty 4 7 and several commendations 48 for the distinguished performance of his duties. On that fateful date of May 3,
1982, he was a member of the Special Task Force Unit covering the tourist belt area.

Of the ten other accused in this case, petitioner admitted knowing only Martin Mateo whose name appeared in the
initial follow-up operation he allegedly participated in regarding a P250,000 qualified theft case on May 16, 1980 at
the Shemberg Marketing Corporation. 49 Although a suspect, Mateo was not charged in the information subsequently
filed in that case. Sometime in March 1981, Mateo visited petitioner at the police headquarters seeking assistance in
his bid to lead a new life. Considering Mateo's familiarity with underworld characters, petitioner readily made him an
informer who was paid from time to time out of the police intelligence fund. Mateo proved to be an effective informer.
In fact, he allegedly supplied vital information on the identities and whereabouts of suspects in robbery cases at the
La Elegancia Jewelry Store, at the Likha Antique and Crafts, 50 and in an alleged racket in Aranque Market in Manila
involving jewelries.
As such informer, Mateo became accustomed to borrowing petitioner's owner-type jeep whenever he was given an
assignment. In one instance however, petitioner saw Mateo using his jeep with some male companions. Because
Mateo denied the occurrence of the incident, petitioner from then on refused to lend his jeep to Mateo. Instead, Mateo
was given an allowance to cover his traveling expenses.

About a month prior to May 3, 1982, petitioner met Mateo and requested the latter to give him a good project as he
was working for his transfer to the Metrocom Intelligence Security Group (MISG). On May 2, 1982, Mateo urged
petitioner to lend him his jeep in order that he could follow-up a bank robbery case. That same evening, petitioner
approached his kumpare, accused Rodolfo Miranda, to borrow the latter's old Mercedes Benz since, if the jeep was
used, Mateo could be identified as an informer. Petitioner left his jeep with Miranda and "went around boasting of the
Mercedes Benz." 51

Mateo took the Benz in the morning of May 3, 1982. Petitioner advised him to return the car between the hours of two
and three in the afternoon at the Lakan Beer House at the corner of Rizal Avenue and Zurbaran Streets in Sta. Cruz,
Manila where petitioner was to meet his friend Manolo Almoguera who would be celebrating his birthday there.
Petitioner met Almoguera and company at around 3:30 in the afternoon. He waited for Mateo until shortly before 5:00
in the afternoon when he was constrained to leave without seeing Mateo because he had to attend a mandatory
regular troop formation at 5:00 P.M. at the police headquarters. From there, petitioner proceeded to his area of
responsibility in the tourist belt. He returned to the beer house at about 6:00 in the evening hoping to find Mateo and
the automobile. A little before 8:00 o'clock, someone informed him that Mateo had finally arrived. Petitioner went out
and scolded Mateo for being late; the latter apologized and said that his surveillance bore good results. Petitioner
then returned the car to Miranda, through the latter's cousin.

At around 11:00 in the evening of May 29, 1982, Mateo, escorted by a group of military men, went to petitioner's
house at 810 Cabezas St., Tondo, Manila. The group refused to give any reason for their visit but arrested him.
Wearing only short pants, petitioner was made to board a car where he was handcuffed. The men asked him about
the Benz and the identities of his companions in an alleged hijacking incident. Petitioner admitted having knowledge
of the exact location of the car but denied participation in the crime. Nobody apprised him of his constitutional rights
to remain silent and to be assisted by counsel. 52

Petitioner was then instructed to accompany Lt. Pagdilao to the residence of Miranda to get the Benz. They were on
board two cars. When petitioner noticed that they were not heading for Miranda's place, he clutched the hand of Lt.
Pagdilao, pleading for pity and thinking that he was about to be "salvaged". Lt. Pagdilao however informed him that
they would be dropping by petitioner's house first per the investigator's information that more checks could be
recovered thereat. A warrantless search was then allegedly conducted in petitioner's house but nothing was found.
Suddenly, someone from the other car came out of a nearby house owned by Mateo and reported that they had
recovered some checks. Thereafter, they proceeded to the house of Miranda who was also invited for questioning.
The latter surrendered his Benz to the group.

At the SOG headquarters in Camp Crame, petitioner was repeatedly coaxed to admit participation in the hijacking. As
he vehemently denied the accusation against him, someone blindfolded him from behind, led him outside and loaded
him in a car. He was taken to an unidentified place and made to lie flat on his back. An object was tied to his small
finger to electrocute him. While a wet handkerchief was stuffed in his mouth, someone mounted his chest and applied
the "water cure" ("tinutubig") through his nose. Because these ordeals were simultaneously carried out, petitioner felt
unbearable pain. He sought permission to get in touch with his father-in-law, Atty. Felix Rosacia, but his request was
denied. They urged him to cooperate otherwise something terrible would happen to him.

Meanwhile, petitioner's wife reported to the WPD General Assignment Section her husband's forcible abduction by
armed men whom she mistook for CIS agents. A check with the CIS yielded negative results. Thereafter, Lt.
Reynaldo Dator went to the SOG where he was informed that petitioner was being investigated but no details were
given thereon pending clearance with superior officers. 53 Consequently, a newspaper carried an item on the SOG's
refusal to allow petitioner's co-police officers to see him in his detention cell. 54

Among his comrades, only Jimmy Victorino, formerly of the WPD who was transferred to the SOG, was able to visit
him. Petitioner revealed to Victorino the maltreatment done him but the latter expressed helplessness about it. In fact,
Victorino advised him to just cooperate so that the SOG would not incriminate him ("  para hindi ka pag-initan
dito"). 55 The advice came after petitioner was warned that he, like Pat. Serrano of the WPD, would be liquidated by
the SOG, 56 should he refuse to cooperate. Later, Mateo came to petitioner's cell and confided that he had been
similarly maltreated and forced to implicate petitioner.
After Mateo left, a prepared statement was shown and read to petitioner. Because its contents were false, petitioner
refused to sign it. Placing his arm around petitioner, a certain Capt. Lagman told petitioner that he thought they had
an understanding already. Petitioner later discovered that Lagman was not member of the military but an "agent" of
the SOG, and a member of the "Contreras gang". Petitioner was therefore constrained to sign the statement because
of his excruciating experience ("hirap na hirap"). He however admitted having read the document before affixing his
signature thereto and initialing the corrections therein. The waiver under Article 125 of the Revised Penal Code and
the certification he executed were allegedly also obtained by duress. Although he picked out one Severino Castro in a
police line-up, he did not even know Castro. He implicated Castro because he was threatened by a certain Boy
Zapanta.

Petitioner filed a complaint for grave coercion and maltreatment against Lt. Rosendo Ferrer and several John Does.
On August 4, 1982, Asst. City Fiscal Emelita H. Garayblas recommended its dismissal for petitioner's failure to
appear despite subpoenas and to answer clarificatory questions as well as to authenticate his statement. 57 However,
petitioner swore that he never received the subpoenas.

Petitioner's alibi was supported by Manolo Almoguera whose birthday on May 3, 1995 was the reason for the
celebration at the Lakan Beer House. While his baptismal certificate indicated that he was born on May 4, 1956, 58 a
joint affidavit 59 also attested that his birth date was actually May 3, 1956. Gary Gallardo, the owner of the beer house,
corroborated Almoguera's testimony as to petitioner's alleged presence during the birthday celebration.

The Respondent Court's Decision

On June 18, 1987, the Sandiganbayan rendered the herein questioned 51-page Decision, the dispositive portion of
which reads:

WHEREFORE, judgment is hereby rendered finding accused Jose Filoteo, Jr. y Diendo, Martin
Mateo, Jr. y Mijares, Bernardo Relator, Jr. y Retino and Eddie Saguindel y Pabinguit GUILTY as
co-principals beyond reasonable doubt of the violation of Section 2 (e), in relation to Section 3 (b)
of Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery
Law of 1974 and hereby sentences each of said accused to suffer the indeterminate penalty
ranging from TWELVE (12) YEARS and ONE (1) DAY as minimum, to THIRTEEN (13) YEARS,
ONE (1) MONTH and ELEVEN (11) DAYS as maximum, both of reclusion temporal, and to pay
their proportionate share of the costs of the action. Accused Danilo Miravalles y Marcelo is hereby
acquitted, with costs de oficio, for insufficiency of evidence.

No civil indemnity is hereby awarded due to the complete dearth of any proof as to the actual
damages suffered by the Bureau of Posts or the owners of the pilfered mail matters, and it further
appearing that the mail van which was hijacked had been recovered, as well as most of the checks
and warrants which were surrendered by some of the accused, without prejudice to the institution
of the proper civil action to recover damages should proof thereof be available.

Consequently, it is hereby ordered that Exhibits B, B-l and B-2, which are the .32 Cal. Revolver,
Smith and Wesson, Serial No. 11707, its holster and six (6) live ammunition respectively, which
were surrendered by accused Relator, and Exhibits J, J-l to J-5, consisting of 187, 222, 215, 197,
194 and 22 pieces, respectively, of Social Security System and Medicare checks and vouchers, be
returned to the Firearm and Explosives Unit (FEU), PC, Camp Crame, Quezon City and the Social
Security System, respectively, upon proper receipts.

Let copies of this decision be furnished the Postmaster-General, Central Post Office, Liwasang
Bonifacio, Metro Manila and the Commanding General and Chief, PC-INP, Camp Crame, Quezon
City for their information and guidance with respect to the other accused who are still at-large.

SO ORDERED.

Petitioner's motion for reconsideration of said Decision was denied by the Sandiganbayan in its challenged
Resolution of July 27, 1987. Hence, the instant alternative petition for certiorari and/or review on certiorari  charging
the Sandiganbayan with having gravely abused its discretion amounting to lack or excess of jurisdiction and with
reversible error in arriving at said Decision.
 The Issues

The amended petition raises the following:

Assignments of Error
and/or
Excess of Jurisdiction/Grave Abuse of Discretion

xxx xxx xxx

First

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction
when it made its determination of the alleged guilt of petitioner on the basis of mere preponderance
of evidence and not proof beyond reasonable doubt.

Second

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in
finding that petitioner's having borrowed the Mercedes Benz car utilized by the other accused in the
hijacking of the mail van indubitably established his direct participation and/or indispensable
cooperation in the said hijacking, the same being in gross disregard of basic Rules of Law.

Third

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in
finding that the voluminous SSS Medicare and Pension Checks were confiscated from and
surrendered by petitioner and three of the other accused and in finding the testimonies and
investigation reports relative thereto. "credible and unrefuted", said findings being, insofar as
petitioner is concerned, absolutely without any basis in the evidence and in fact contrary to the
prosecution's only evidence that has some measure of competency and admissibility.

Fourth

The respondent court erred and gravely abused its discretion in finding that dorsal portions of the
checks and warrants allegedly taken from petitioner were signed by him to indicate his admission
of accountability therefor and that his signatures thereon confirm the confiscation from and/or
surrender by him of said checks, said findings being absolutely without any support in the evidence.

Fifth

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in
admitting and considering against petitioner his alleged extra judical confession, despite petitioner's
uncontradicted testimony and documentary proof that he was made to give or sign the same
through torture, maltreatment, physical compulsion, threats and intimidation and without the
presence and assistance of counsel, his request for which was refused, in gross violation of
Constitutional Provisions and the prevailing jurisprudence.

Sixth

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in
finding that petitioner's participation in the hijacking of the mail van is indubitably established "by
the manner by which the SOG operatives succeeded in ferreting out the members of the hijacking
syndicate one by one through patient sleuthing" and in finding that they did so "without resorting to
extra-legal measures" and that "no evidence having been adduced to show that they were actuated
by improper motives to testify falsely against the herein accused, then their testimonies should be
accorded full credence".
 Seventh

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in
finding that "even setting aside the inter-locking confessional statements of Filoteo, Mateo and
Liwanag, . . substantial and sufficient evidence exist which indubitably prove the guilt of Filoteo"
(Petitioner).

Eighth

Insofar as petitioner is concerned, the respondent court erred and gravely abused its discretion as
well as exceeded its jurisdiction in finding that  "accused Filoteo's (  petitioner's) and
Mateo's [alleged] unexplained possession of the stolen checks raised the presumption that "they
were responsible for the robbery in question",  petitioner's alleged possession not being borne out
but disputed by the prosecution's own evidence.

Ninth

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in
finding that "accused Filoteo's denials and alibi cannot be entertained for being quite weak and
implausible". The truth of the matter being that they should have been sustained since petitioner
was not identified by direct victims-eyewitnesses as among those who participated in or were
present at the hijack and none of the checks and treasury warrants were found in his possession or
retrieved from him.

Tenth

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in
finding that the participation of petitioner in the criminal conspiracy has been proven beyond
reasonable doubt by the evidence of record and that said evidence "not only confirms the
conspiracy between [him and the other accused] as easily discernible from their conduct before,
during and after the commission of the offense, but also their participation and/or indispensable
cooperation".

Eleventh

The respondent Court erred and gravely abused its discretion as well as exceeded its jurisdiction in
cavalierly rejecting, through the use of pejorative words, and without stating the legal basis of such
rejection, the various vital factual points raised by petitioner, in gross violation of the express
mandate of the 1987 Constitution.

The Court believes that the above "errors" may be condensed into four:

(1) Are the written statements, particularly the extra-judicial confession executed by the accused without the presence
of his lawyer, admissible in evidence against him?

(2) Were said statements obtained through torture, duress, maltreatment and intimidation and therefore illegal and
inadmissible?

(3) Was petitioner's warrantless arrest valid and proper?

(4) Is the evidence of the prosecution sufficient to find the petitioner guilty beyond reasonable doubt?

The Court's Ruling

Preliminary Issue: Rule 4 or Rule 65?

Before ruling on the foregoing issues, it is necessary to dwell on the procedural aspects of the case. Petitioner, a
"segurista", opted to file an (amended) "alternative petition" for certiorari under Rule 65 and for review
on certiorari under Rule 45 of the Rules of Court. We however hold that the instant petition must be considered as
one for review on certiorari  under Rule 45. In Jariol, Jr. vs. Sandiganbayan, 60 this Court clearly ruled:

Presidential Decree No. 1486, as amended by P.D. No. 1606, which created the Sandiganbayan,
specified that decisions and final orders of the Sandiganbayan shall be subject to review
on certiorari by this Court in accordance with Rule 45 of the Rules of Court. And Rule 45 of the
Revised Rules of Court provides, in Section 2, that only questions of law may be raised in the
Petition for Review and these must be distinctly set forth. Thus, in principle, findings of fact of the
Sandiganbayan are not to be reviewed by this Court in a petition for review on certiorari. There are,
of course, certain exceptions to this general principle. Here, reading petitioner's Petition for Review
and Memorandum in the most favorable possible light, petitioner may be seen to be in effect
asserting that the Sandiganbayan misapprehended certain (f)acts in arriving at its factual
conclusions.

As amended by Republic Act No. 7975, Section 7 of P.D. No. 1606 expressly provides that "(d)ecisions and final
orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on  certiorari  raising
pure questions of law in accordance with Rule 45 of the Rules of Court." However, in exceptional cases, this Court
has taken cognizance of questions of fact in order to resolve legal issues, as where there was palpable error or grave
misapprehension of facts by the lower court. Criminal cases elevated by convicted public officials from the
Sandiganbayan deserve the same thorough treatment by this Court as criminal cases involving ordinary citizens
simply because the constitutional presumption of innocence must be overcome by proof beyond reasonable doubt. In
all criminal cases, a person's life and liberty are at stake. 61

As a petition for review under Rule 45 is the available remedy, a petition for certiorari under Rule 65 would not
prosper. Basic it is that certiorari  is invocable only where there is no other plain, speedy or adequate remedy. For
waffling on procedural matters, petitioner could have lost this battle through a summary dismissal of his "alternative"
petition. But in view of the importance of the issues raised, the Court decided to take cognizance of the matter.

First Issue: Uncounselled Waiver

On the merits of the petition, we find that the pivotal issue here is the admissibility of petitioner's extrajudicial
confession which lays out in detail his complicity in the crime.

Petitioner contends that respondent Court erred in admitting his extrajudicial confession notwithstanding
uncontradicted testimony and documentary proof that he was made to sign the same through torture, maltreatment,
physical compulsion, threats and intimidation and without the presence and assistance of counsel. He also claims
that in executing the extrajudicial confession, he was denied the right to counsel in the sameway that his waiver of the
said right was likewise without the benefit of counsel. Petitioner therefore questions the respondent Court's admission
evidence of his extrajudicial confession on the strength of cases 62 upholding the admissibility of extrajudicial
confessions notwithstanding the absence of counsel "especially where the statements are replete with details and
circumstances which are indicative of voluntariness." We shall first tackle the issue of his uncounselled waiver of his
right to counsel.

The pertinent provision of Article IV, Section 20 of the 1973 Constitution reads as follows:

No person shall be compelled to be a witness against himself. Any person under investigation for
the commission of an offense shall have the right to remain silent and to counsel and to be
informed of such rights. No force, violence, threat, intimidation, or any other means which vitiate the
free will shall be used against him. Any confession obtained in violation of this section shall be
inadmissible in evidence.

In comparison, the relevant rights of an accused under Article III, Section 12 of the 1987 Constitution are, inter alia,
as follows:

(1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of
 his own choice. If the person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation; or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms
of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices and their families."
(emphasis supplied. Obviously, the 1973 Constitution did not contain the right against an
uncounselled waiver of the right to counsel which is provided under paragraph 1, Section 12, Article
III of the 1987 Constitution, above underscored.)

In the landmark case of Magtoto vs. Manguera, 63 the Court categorically held that the aforequoted provisions of the
1973 Constitution (which were not included in the 1935 Charter) must be prospectively applied. This Court said:

We hold that this specific portion of this constitutional mandate has and should be given a
prospective and not a retrospective effect. Consequently, a confession obtained from a person
under investigation for the commission of an offense, who has not been informed of his right (to
silence and) to counsel, is inadmissible in evidence if the same had been obtained after the
effectivity of the New Constitution on January 17, 1973. Conversely, such confession is admissible
in evidence against the accused, if the same had been obtained before the effectivity of the New
Constitution, even if presented after January 17, 1973, and even if he had not been informed of his
right to counsel, since no law gave the accused the right to be so informed before that date.

By parity of reasoning, the specific provision of the 1987 Constitution requiring that a waiver by an accused of his
right to counsel during custodial investigation must be made with the assistance of counsel may not be applied
retroactively or in cases where the extrajudicial confession was made prior to the effectivity of said Constitution.
Accordingly, waivers of the right to counsel during custodial investigation without the benefit of counsel during the
effectivity of the 1973 Constitution should, by such argumentation, be admissible. Although a number of cases held
that extrajudicial confessions made while the 1973 Constitution was in force and effect, should have been made with
the assistance of counsel, 64 the definitive ruling was enunciated only on April 26, 1983 when this Court,
through Morales, Jr. vs. Enrile,65 issued the guidelines to be observed by law enforcers during custodial investigation.
The Court specifically ruled that "(t)he right to counsel may be waived but the waiver shall not be valid unless made
with the assistance of counsel. 66 Thereafter, in People vs. Luvendino, 67 the Court through Mr. Justice Florentino P.
Feliciano vigorously taught:

. . . The doctrine that an uncounseled waiver of the right to counsel is not to be given legal effect
was initially a judge-made one and was first announced on 26 April 1983 in Morales vs. Enrile  and
reiterated on 20 March 1985 in People vs. Galit. . . .

While the Morales-Galit doctrine eventually became part of Section 12(1) of the 1987 Constitution,
that doctrine affords no comfort to appellant Luvendino for the requirements and restrictions
outlined in Morales and Galit have no retroactive effect and do not reach waivers made prior to 26
April 1983 the date of promulgation of Morales.

Pursuant to the above doctrine, petitioner may not claim the benefits of the Morales and Galit rulings because he
executed his extrajudicial confession and his waiver to the right to counsel on May 30, 1982, or before April 26, 1983.
The prospective application of "judge-made" laws was underscored in Co vs. Court of Appeals  68 where the Court
ruled thru Chief Justice Andres R. Narvasa that in accordance with Article 8 of the Civil Code which provides that
"(j)udicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the
Philippines," and Article 4 of the same Code which states that "(l)aws shall have no retroactive effect unless the
contrary is provided," the principle of prospectivity of statutes, original or amendatory, shall apply to judicial decisions,
which, although in themselves are not laws, are nevertheless evidence of what the law means.69
Petitioner's contention that Article III, Section 12 of the 1987 Constitution should be given retroactive effect for being
favorable to him as an accused, cannot be sustained. While Article 22 of the Revised Penal Code provides that
"(p)enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony who is not a habitual
criminal," what is being construed here is a constitutional provision specifically contained in the Bill of Rights which is
obviously not a penal statute. A bill of rights is a declaration and enumeration of the individual rights and privileges
which the Constitution is designed to protect against violations by the government, or by individuals or groups of
individuals. It is a charter of liberties for the individual and a limitation upon the power of the state.  70 Penal laws, on
the other hand, strictly and properly are those imposing punishment for an offense committed against the state which
the executive of the state has the power to pardon. In other words, a penal law denotes punishment imposed and
enforced by the state for a crime or offense against its law. 71

Hence, petitioner's vigorous reliance on People vs. Sison  72 to make his extrajudicial confession inadmissible is
misplaced. In that case, the extrajudicial confession was executed on May 19, 1983, clearly after the promulgation of
Morales on April 26, 1983.

The admissibility of petitioner's uncounselled waiver of the right to counsel notwithstanding, the Court has still to
determine whether such waiver was made voluntarily and intelligently. 73 The waiver must also be categorical and
definitive, 74 and must rest on clear evidence. 75

In his affidavit of May 30, 1982 waiving the provisions of Article 125 of the Revised Penal Code,  76 petitioner stated
that:

. . . matapos akong mapagpaliwanagan ng mga imbestigador ng Special Operations Group,

PC/INP Central Anti-Organized Crime Task Force, Camp Crame, Quezon City ng aking mga
karapatan alinsunod sa mga isinasaad ng Section 20, Article IV ng Bagong Saligang Batas ng
Republika ng Pilipinas ay malaya at kusang-loob na nagsasalaysay ng mga sumusunod kahit na
walang abugadong magpapayo sa akin sa pagsasagawa nito sa dahilang alam at nauunawaan ko
ang aking ginagawa at wala naman akong isasalaysay kung hindi mga katotohanan lamang,
bagama't ako ay inalok ng mga imbestigador na ikuha ng isang abugadong walang bayad mula sa
CLAO-IBP na akin namang tinanggihan:

xxx xxx xxx

Na ako ay hindi sinaktan a minaltrato gayunding walang kinuha mula sa akin na hindi niresibohan;

x x x           x x x          x x x

Sgt. Arsenio Carlos, investigating officer, testified that he apprised petitioner of his right to counsel even in waiving
the same right77 but petitioner did not even inform him that his father-in-law was a lawyer. Although allowed to talk for
thirty minutes with Jimmy Victorino, who was his comrade at the WPD General Assignment Section, 78 still, petitioner
did not invoke his right to counsel.

It should be emphasized that petitioner could not have been ignorant of his rights as an accused. He was a fourth
year criminology student and a topnotch student in the police basic course. 79 Having been in the police force since
1978, with stints at the investigation division or the detective bureau, he knew the tactics used by investigators to
incriminate criminal suspects. 80 In other words, he was knowledgeable on the matterof extrajudicial confessions.

The Second Issue: Confession Extracted Through Torture?

Petitioner's claim that he was tortured into signing the confession appears incredible, or at least susceptible to
serious doubts. The allegation of torture was negated by the medical report 81 showing no evidence of physical
injuries upon his person. As correctly observed by the Solicitor General, there is no reason to maltreat him in
particular when the record shows that the investigating team respected the right of the other suspects to remain
silent. When he was presented before Judge Mariano Mendieta of the municipal court in Meycauayan, petitioner even
waived his right to present evidence82 instead of impugning his confession on account of the torture allegedly inflicted
upon him. If indeed he had been tortured, he would have revived the case he filed against his alleged torturers upon
learning of its dismissal.
Furthermore, an examination of his signatures in the different documents on record bearing the same discloses an
evenness of lines and strokes in his penmanship which is markedly consistent in his certification, extrajudicial
confession and waiver of detention. Human experience has proven that the lines and strokes of a person's
handwriting reflect his disposition at a certain given time. In the present case, no handwriting expert is needed to
declare that petitioner's signatures were written voluntarily and not under compulsion of fear immediately after he had
been subjected to maltreatment. In view of the foregoing, his extrajudicial confession is presumed to have been
voluntarily made, in the absence of conclusive evidence showing that petitioner's consent in executing the same had
been vitiated. 83

Besides, the question of whether petitioner was indeed subjected to torture or maltreatment is a factual question
addressed primarily to trial courts, the findings of which are binding on this Court whose function, as afore-discussed,
is principally to review only of questions of law. Moreover, we have pored over the assailed Decision and we are
satisfied that respondent Court performed its duty in evaluating the evidence. More on this later.

The Third Issue: Illegal Arrest?

Petitioner questions the manner of his arrest, stating that the arresting officers "invited" him without a warrant of
arrest and brought him to Camp Crame where he was allegedly subjected to torture almost a month after the
commission of the crime. 84 Petitioner's claim is belatedly made. He should have questioned the validity of his arrest
before he entered his plea in the trial court. On this point, this Court explained in People vs. Lopez, Jr.: 85

Finally, it is much too late for appellant to raise the question of his arrest without a warrant. When
accused-appellant was arrested and a case was filed against him, he pleaded not guilty upon
arraignment, participated in the trial and presented his evidence. Appellant is thus estopped from
questioning the legality of his arrest. It is well-settled that any objection involving a warrant of arrest
or procedure in the acquisition by the court of jurisdiction over the person of an accused must be
made before he enters his plea, otherwise the objection is deemed waived. Besides, this issue is
being raised for the first time by appellant. He did not move for the quashal of the information
before the trial court on this ground. Consequently, any irregularity attendant to his arrest, if any,
was cured when he voluntarily submitted himself to the jurisdiction of the trial court by entering a
plea of not guilty and by participating in the trial. Moreover, the illegal arrest of an accused is not
sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial
free from error.

The only move petitioner made in regard to his arrest was to file a complaint for "grave coercion, grave threat &
maltreatment" which was docketed as I.S. No. 82-12684 before the Fiscal's Office of Quezon City. 86 The complaint
was an offshoot of his alleged maltreatment in the hands of the SOG upon his arrest. However, as stated above, he
did not lift a finger to revive it upon its dismissal.

The Fourth Issue: Sufficiency of the Prosecution's Evidence

Contrary to petitioner's claim, his culpability has been proven beyond reasonable doubt. He borrowed a car to use in
the hijacking knowing fully well that his owner-type jeep would give away his identity. Hecould not be identified by the
postal employees in the postal van simply because after overtaking said vehicle and forcing its driver to pull over, he
gave up driving the Mercedes Benz where the postal employees were made to ride, and commandeered the van.
That the checks were not found in his own home is of no moment. Before the arrest and upon learning that the
authorities had begun to nail down the identities of the malefactors, hehad entrusted them to his " kumare". It was
petitioner himself who led the team of Lt. Pagdilao back to his place after he had admitted to Sgt. Arsenio Carlos that
his share of the checks were in the possession of his "kumare" in the neighborhood. 87

In view of these facts, it is beyond dispute that petitioner was a direct participant in the commission of the crime. His
alibi has been correctly considered by the Sandiganbayan to be weak and implausible. The distance between
Kalvario, Meycauayan, Bulacan and downtown Manila where petitioner claimed to have been at the crucial time was
between fifteen (15) to twenty (20) kilometers, which, through first-class roads, could be negotiated during that time in
approximately thirty (30) minutes. It could not therefore have been physically impossible for him to be at the crime
scene or its immediate vicinity when the crime was committed. 88

Having already ruled on the admissibility of petitioner's confession, this Court holds that the full force of the totality of
the prosecution's evidence proves his guilt well beyond reasonable doubt. Weighing heavily against the defense is
the well-settled doctrine that findings of facts of the trial courts — in this case, the Sandiganbayan itself — particularly
in the assessment of the credibility of witnesses, is binding upon this Court, absent any arbitrariness, abuse or
palpable error.

. . . It is well-settled that this Court will not interfere with the judgment of the trial court in passing on
the credibility of the witnesses, unless there appears in the record some fact or circumstance of
weight and influence which has been overlooked or the significance of which has been
misapprehended or misinterpreted. The reason for this is that the trial court is in a better position to
decide the question, having heard the witnesses themselves and observed their deportment and
manner of testifying during the trial. 89

The doctrine is firmly settled that the trial court's conclusion on issues of credibility is accorded with
highest respect by the appellate courts (People v. Dominguez, 217 SCRA 170). Appellate courts
will generally respect the findings of trial courts on the credibility of witnesses since trial courts are
in a better position to weigh conflicting testimonies. They heard the witnesses themselves and
observed their deportment and manner of testifying. . . . 90

So overwhelming is the prosecution's evidence that respondent Court opined that even without the "inter-locking
confessions of Filoteo, Mateo and Liwanag" the remaining evidence would still be sufficient for conviction. 91 Said the
respondent tribunal:

However, even setting aside the inter-locking confessional statements of Filoteo, Mateo and
Liwanag, we are of the considered opinion that substantial and sufficient evidence exist which
indubitably prove the guilt of Filoteo, Relator, Mateo and Saguindel who had submitted themselves
to the jurisdiction of this Court. As above-stated, Filoteo was responsible for securing the use of the
Mercedes Benz car used by the co-conspirators in the hi-jacking. Together with Mateo, Liwanag
and Mendoza, he surrendered voluminous assorted checks which were part of the loot. Relator
admitted that his service firearm was used by him in the hi-jacking, which firearm was identified by
prosecution witnesses Miranda and Bautista. Saguindel was identified in line-ups at the SOG office
as the suspect clad in fatigue uniform and carrying an Armalite rifle by prosecution witnesses
Tagudar and Bautista. All three (3) accused, namely, Mateo, Relator and Saguindel also jumped
bail during the trial and did not offer any evidence to refute the evidence presented by the
prosecution against them. Such flight to evade prosecution constitutes an implied admission of
guilt.

Moreover, accused Filoteo's and Mateo's unexplained possession of the stolen checks raises the
presumption that they were responsible for the robbery in question. It is a rule established by an
abundance of jurisprudence that when stolen property is found in the possession of one, not the
owner, without a satisfactory explanation of his possession, he will be presumed the thief. This rule
is in accordance with the disputable presumption "that a person found in possession of a thing
taken in the doing of a recent wrongful act is the taker and doer of the whole act." In the instant
case, said accused has not given such satisfactory explanation, much more so when their
possession had been positively established by the testimonies of prosecution witnesses Capt.
Ferrer and Sgt. Carlos and by accused's own signatures at the back of said checks.

Furthermore, accused Filoteo's denials and alibi cannot be entertained for being quite weak and
implausible. His claim that he merely borrowed the Mercedes Bent car from Rodolfo Miranda to
help out his co-accused Mateo, who had been utilized by the police as an "informer" and was
following up tips in certain unsolved cases, appears to be incredible and fantastic. He also claimed
that he could not have participated in the hi-jack because after giving the car to Mateo in the
morning of May 2, 1982, he waited at the corner of Zurbaran St. and Avenida Rizal between 2-3:00
o'clock p.m. of the same day and then went to the WPD headquarters to attend the police formation
at around 5:00 o'clock p.m. when Mateo failed to show up. Thereafter, he tried to show through his
witnesses Gary Gallardo and Manolo Almogera that he was with them between 3:00 o'clock to 4:45
o'clock p.m., then from 6:00 o'clock to 8:30 o'clock p.m. and, finally, from 10:45 o'clock p.m. to
11:00 o'clock of the same date. It was through said witnesses that he tried to establish his
whereabouts between 4:30 o'clock to 7:30 o'clock p.m. of May 2, 1982, the period from the time the
mail van was hi-jacked up to when postal employees Bautista, Miranda and Tagudar were brought
to Caloocan City and freed by their captors. Such alibi, however, fails to show that it was physically
impossible for him to be present at the scene of the hi-jacking. We take judicial notice that the
 distance between the crime scene and down-town Manila is some 15-20 kilometers and negotiable
over first- class roads in some thirty (30) minutes.

We are likewise convinced that there is sufficient evidence of conspiracy as convincing as the evidence of the
participation of each of the accused. As ratiocinated in the assailed Decision: 92

The participation of accused Filoteo, Mateo, Relator and Saguindel in the criminal conspiracy have
(sic) been proved beyond reasonable doubt by the evidence on record and which evidence not only
confirms the existence of the conspiracy between them as easily discernible from their conduct
before, during and after the commission of the offense, but also their participation therein as co-
principals by direct participation and/or indispensable cooperation. Their concerted efforts were
performed with closeness and coordination indicating their common purpose. Hence, there being
collective criminal responsibility, the act of one is the act of all, and each of the participants are
responsible for what the others did in all the stages of execution of the offense.

Final Question: Brigandage or Robbery?

The Court believes that, though not raised as an issue and though not argued by the parties in their pleadings, the
question of which law was violated by the accused should be discussed and passed upon. In fact, petitioner should
have brought up such question as it may benefit him with a reduced penalty.

The respondent Court convicted the accused of brigandage punishable under Presidential Decree No. 532. 93

Justifying the above disposition, the assailed Decision ratiocinates:

Accused herein are charged with the violation of Presidential Decree No. 532, otherwise known as
the Anti-Piracy and Anti-Highway Robbery Law of 1974. Under said decree, with respect to the
highway robbery aspect, the offense is committed on a "Philippine Highway" which under Section 2
(c) thereof has been defined as "any road, street, passage, highway  and bridges or any part
thereof, or railway or railroad within the Philippines, used by persons or vehicles, or locomotives or
trains  for the movement or circulation of persons or transportation of goods, articles or property or
both", while under Section 2 (e) thereof "Highway Robbery/ Brigandage" has been defined as the
"the seizure of any person for ransom, extortion or other unlawful purposes or the taking away of
property of another by means of violence against or intimidation of persons nor force upon things
or other unlawful means, committed by any person on any Philippine Highway". (Emphasis
supplied)

The offense described in the information and established by the evidence presented by the
prosecution properly falls within the ambit of the aforesaid special law. Therein, it was conclusively
proven that a postal van containing mail matters, including checks and warrants, was hi-jacked
along the national highway in Bulacan by the accused, with the attendant use of force, violence and
intimidation against the three (3) postal employees who were occupants thereof, resulting in the
unlawful taking and asportation of the entire van and its contents consisting of mail matters. Also
the evidence further showed that the crime was committed by the accused who were PC soldiers,
policeman (sic) and private individuals in conspiracy with their co-accused Castro and Escalada
who were postal employees and who participated in the planning of the crime. Accordingly, all the
essential requisites to constitute a consummated offense under the law in point are present.
(Emphasis in the original text.)

Obviously, the Court a quo labored under the belief that because the taking or robbery was perpetrated on a national
highway (McArthur Highway), ergo, Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti-
Highway Robbery Law of 1974, must have been the statute violated. Such reasoning has already been debunked by
this Court in the case of People vs. Isabelo Puno, 94 where it was ruled in unmistakable language that it takes more
than the situs of the robbery to bring it within the ambit of PD 532. Said the Court through Mr. Justice Florenz D.
Regalado:

The following salient distinctions between brigandage and robbery are succinctly explained in a
treatise on the subject and are of continuing validity:
 The main object of the Brigandage Law is to prevent the formation of bands of
robbers. The heart of the offense consists in the formation of a band by more
than three armed persons for the purpose indicated in art. 306. Such formation is
sufficient to constitute a violation of art. 306. It would not be necessary to show,
in a prosecution under it, that a member or members of the band actually
committed robbery or kidnapping or any other purpose attainable by violent
means. The crime is proven when the organization and purpose of the band are
shown to be such as are contemplated by art. 306. On the other hand, if robbery
is committed by a band, whose members were not primarily organized for the
purpose of committing robbery or kidnapping, etc., the crime would not be
brigandage, but only robbery. Simply because robbery was committed by a band
of more than three armed persons, it would not follow that it was committed by a
band of brigands. In the Spanish text of art. 306, it is required that the band "sala
a los campos para dedicarse a robar." (Emphasis ours.)

In fine, the purpose of brigandage, is inter alia, indiscriminate highway robbery. If the purpose is
only a particular robbery, the crime is only robbery, or robbery in band if there are at least four
armed participants. The martial law legislator, in creating and promulgating Presidential Decree No.
532 for the objectives announced therein, could not have been unaware of that distinction and is
presumed to have adopted the same, there being no indication to the contrary. This conclusion is
buttressed by the rule on contemporaneous construction, since it is one drawn from the time when
and the circumstances under which the decree to be construed originated. Contemporaneous
exposition or construction is the best and strongest in the law.

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of
robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine
highways as defined therein, and not acts of robbery committed against only a predetermined or
particular victim, is evident from the preambular clauses thereof, to wit:

WHEREAS, reports from law-enforcement agencies reveal that lawless elements

are still committing acts of depredation upon the persons and properties of
innocent and defenseless inhabitants who travel from one place to another,
thereby disturbing the peace, order and tranquility of the nation and stunting the
economic and social progress of the people:

WHEREAS, such acts of depredations constitute . . . highway

robbery/brigandage which are among the highest forms of lawlessness
condemned by the penal statutes of all countries:

WHEREAS, it is imperative that said lawless elements be discouraged from

perpetrating such acts of depredations by imposing heavy penalty on the
offenders, with the end in view of eliminating all obstacles to the economic,
social, educational and community progress of the people; (Emphasis supplied.)

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by
the accused as their specific victim could be considered as committed on the "innocent and
defenseless inhabitants who travel from one place to another," and which single act of depredation
would be capable of "stunting the economic and social progress of the people" as to be considered
"among the highest forms of lawlessness condemned by the penal statutes of all countries, and
would accordingly constitute an obstacle "to the economic, social, educational and community
progress of the people, such that said isolated act would constitute the highway robbery or
brigandage contemplated and punished is said decree. This would be an exaggeration bordering
on the ridiculous.

From the above, it is clear that a finding of brigandage or highway robbery involves not just the  locus of the crime or
the fact that more than three (3) persons perpetrated it. It is essential to prove that the outlaws were purposely
organized not just for one act of robbery but for several indiscriminate commissions thereof. In the present case,
there had been no evidence presented that the accused were a band of outlaws organized for the purpose of
"depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to
another." What was duly proven in the present case is one isolated hijacking of a postal van. There was also no
evidence of any previous attempts at similar robberies by the accused to show the "indiscriminate" commission
thereof. 95

Upon the other hand, the Information did not specifically mention P.D. 532. 96 The facts alleged therein and proven by
the evidence constitute the offense of robbery defined in Art. 293 in relation to Art. 295 and punished by Art. 244, par.
5, all of the Revised Penal Code. 97 From the facts, it was duly proven that:

* personal property (treasury warrants, checks, mail, van, tools, etc.)

* belonging to another were

* unlawfully taken by the accused

* with intent to gain (animo lucrandi)

* with intimidation against three persons (Art. 293)

* in an uninhabited place, or

* by an band, or

* by attacking a moving motor vehicle

* on a highway; and

* the intimidation was made with the use of firearms (Art. 295)

Hence, the offender shall be punished by the maximum period of the penalty provided under paragraph 5 of Art. 294,
which is, "  prision correccional  in its maximum period to  prision mayor in its medium period".

Effectively, the penalty imposed by the Court a quo should be lightened. However, such lighter penalty shall benefit
only herein petitioner and not his co-accused who did not contest or appeal the Sandiganbayan's Decision.

WHEREFORE, the petition is DENIED, but the first paragraph of the dispositive portion of the assailed Decision is
partially MODIFIED to read as follows:

WHEREFORE, judgment is hereby rendered finding accused Jose Filoteo, Jr. y Diendo GUILTY
beyond reasonable doubt as co-principal in the crime of robbery as defined in Arts. 293 and 295
and penalized under Art. 294, paragraph 5, of the Revised Penal Code Code IMPOSING on him an
indeterminate sentence of four (4) years and two (2) months of  prision correccional, as minimum,
to ten (10) years of prision mayor as maximum, and to pay his proportionate share of the costs of
the action.

All other parts of the disposition are hereby AFFIRMED.

SO ORDERED.
 6. G.R. No. 117040           January 27, 2000

RUBEN SERRANO, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and ISETANN DEPARTMENT STORE, respondents.

MENDOZA, J.:

This is a Petition seeking review of the resolutions, dated March 30, 1994 and August 26, 1994, of the National Labor
Relations Commission (NLRC) which reversed the decision of the Labor Arbiter and dismissed petitioner Ruben
Serrano's complaint for illegal dismissal and denied his motion for reconsideration. The facts are as follows:

Petitioner was hired by private respondent Isetann Department Store as a security checker to apprehend shoplifters
and prevent pilferage of merchandise.1 Initially hired on October 4, 1984 on contractual basis, petitioner eventually
became a regular employee on April 4, 1985. In 1988, he became head of the Security Checkers Section of private
respondent.2

Sometime in 1991, as a cost-cutting measure, private respondent decided to phase out its entire security section and
engage the services of an independent security agency. For this reason, it wrote petitioner the following
memorandum:3

October 11, 1991

MR. RUBEN SERRANO

PRESENT

Dear Mr. Seranno,

 In view of the retrenchment program of the company, we hereby reiterate our verbal notice to you
of your termination as Security Section Head effective October 11, 1991.

Please secure your clearance from this office.

Very truly yours,

[Sgd.] TERESITA A. VILLANUEVA

Human Resources Division Manager

The loss of his employment prompted petitioner to file a complaint on December 3, 1991 for illegal dismissal,
illegal layoff, unfair labor practice, underpayment of wages, and nonpayment of salary and overtime pay.4

The parties were required to submit their position papers, on the basis of which the Labor Arbiter defined the
issues as follows:5

Whether or not there is a valid ground for the dismissal of the complainant.

Whether or not complainant is entitled to his monetary claims for underpayment of wages, nonpayment of
salaries, 13th month pay for 1991 and overtime pay.

Whether or not Respondent is guilty of unfair labor practice.

Thereafter, the case was heard. On April 30, 1993, the Labor Arbiter rendered a decision finding petitioner to have
been illegally dismissed. He ruled that private respondent failed to establish that it had retrenched its security section
to prevent or minimize losses to its business; that private respondent failed to accord due process to petitioner; that
private respondent failed to use reasonable standards in selecting employees whose employment would be
terminated; that private respondent had not shown that petitioner and other employees in the security section were so
inefficient so as to justify their replacement by a security agency, or that "cost-saving devices [such as] secret video
cameras (to monitor and prevent shoplifting) and secret code tags on the merchandise" could not have been
employed; instead, the day after petitioner's dismissal, private respondent employed a safety and security supervisor
with duties and functions similar to those of petitioner.1âwphi1.nêt

Accordingly, the Labor Arbiter ordered:6

WHEREFORE, above premises considered, judgment is hereby decreed:

(a) Finding the dismissal of the complainant to be illegal and concomitantly, Respondent is ordered to pay
complainant full backwages without qualification or deduction in the amount of P74,740.00 from the time of
his dismissal until reinstatement. (computed till promulgation only) based on his monthly salary of
P4,040.00/month at the time of his termination but limited to (3) three years;

(b) Ordering the Respondent to immediately reinstate the complainant to his former position as security
section head or to a reasonably equivalent supervisorial position in charges of security without loss of
seniority rights, privileges and benefits. This order is immediately executory even pending appeal;

(c) Ordering the Respondent to pay complainant unpaid wages in the amount of P2,020.73 and
proportionate 13th month pay in the amount of P3,198.30;

(d) Ordering the Respondent to pay complainant the amount of P7,995.91, representing 10% attorney's fees
based on the total judgment award of P79,959.12.

All other claims of the complainant whether monetary or otherwise is hereby dismissed for lack of merit.

SO ORDERED.
Private respondent appealed to the NLRC which, in its resolution of March 30, 1994; reversed the decision of the
Labor Arbiter and ordered petitioner to be given separation pay equivalent to one month pay for every year of service,
unpaid salary, and proportionate 13th month pay. Petitioner filed a motion for reconsideration, but his motion was
denied.

The NLRC held that the phase-out of private respondent's security section and the hiring of an independent security
agency constituted an exercise by private respondent of "[a] legitimate business decision whose wisdom we do not
intend to inquire into and for which we cannot substitute our judgment"; that the distinction made by the Labor Arbiter
between "retrenchment" and the employment of cost-saving devices" under Art. 283 of the Labor Code was
insignificant because the company official who wrote the dismissal letter apparently used the term "retrenchment" in
its "plain and ordinary sense: to layoff or remove from one's job, regardless of the reason therefor"; that the rule of
"reasonable criteria" in the selection of the employees to be retrenched did not apply because all positions in the
security section had been abolished; and that the appointment of a safety and security supervisor referred to by
petitioner to prove bad faith on private respondent's part was of no moment because the position had long been in
existence and was separate from petitioner's position as head of the Security Checkers Section.

Hence this petition. Petitioner raises the following issue:

IS THE HIRING OF AN INDEPENDENT SECURITY AGENCY BY THE PRIVATE RESPONDENT TO

REPLACE ITS CURRENT SECURITY SECTION A VALID GROUND FOR THE DISMISSAL OF THE
EMPLOYEES CLASSED UNDER THE LATTER?7

Petitioner contends that abolition of private respondent's Security Checkers Section and the employment of an
independent security agency do not fall under any of the authorized causes for dismissal under Art. 283 of the Labor
Code.

Petitioner Laid Off for Cause

Petitioner's contention has no merit. Art. 283 provides:

Closure of establishment and reduction of personnel. — The employer may also terminate the employment of any
employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing
or cessation of operations of the establishment or undertaking unless the closing is for the purpose of circumventing
the provisions of this Title, by serving a written notice on the, workers and the Department of Labor and Employment
at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving
devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least one (1)
month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to
prevent losses and in cases of closure or cessation of operations of establishment or undertaking not due to serious
business losses or financial reverses, the separation pay shall be equivalent to at least one (1) month pay or at least
one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be
considered as one (1) whole year.

In De Ocampo v. National Labor Relations Commission,8 this Court upheld the termination of employment of three
mechanics in a transportation company and their replacement by a company rendering maintenance and repair
services. It held:

In contracting the services of Gemac Machineries, as part of the company's cost-saving program, the
services rendered by the mechanics became redundant and superfluous, and therefore properly terminable.
The company merely exercised its business judgment or management prerogative. And in the absence of
any proof that the management abused its discretion or acted in a malicious or arbitrary manner, the court
will not interfere with the exercise of such prerogative.9

In Asian Alcohol Corporation v. National Labor Relations Commission,10 the Court likewise upheld the termination of
employment of water pump tenders and their replacement by independent contractors. It ruled that an employer's
good faith in implementing a redundancy program is not necessarily put in doubt by the availment of the services of
an independent contractor to replace the services of the terminated employees to promote economy and efficiency.
Indeed, as we pointed out in another case, the "[management of a company] cannot be denied the faculty of
promoting efficiency and attaining economy by a study of what units are essential for its operation. To it belongs the
ultimate determination of whether services should be performed by its personnel or contracted to outside
agencies . . . [While there] should be mutual consultation, eventually deference is to be paid to what management
decides."11 Consequently, absent proof that management acted in a malicious or arbitrary manner, the Court will not
interfere with the exercise of judgment by an employer.12

In the case at bar, we have only the bare assertion of petitioner that, in abolishing the security section, private
respondent's real purpose was to avoid payment to the security checkers of the wage increases provided in the
collective bargaining agreement approved in 1990.13 Such an assertion is not sufficient basis for concluding that the
termination of petitioner's employment was not a bona fide decision of management to obtain reasonable return from
its investment, which is a right guaranteed to employers under the Constitution. 14 Indeed, that the phase-out of the
security section constituted a "legitimate business decision" is a factual finding of an administrative agency which
must be accorded respect and even finality by this Court since nothing can be found in the record which fairly
detracts from such finding.15

Accordingly, we hold that the termination of petitioner's services was for an authorized cause, i.e., redundancy.
Hence, pursuant to Art. 283 of the Labor Code, petitioner should be given separation pay at the rate of one month
pay for every year of service.

Sanctions for Violations of the Notice Requirement

Art. 283 also provides that to terminate the employment of an employee for any of the authorized causes the
employer must serve "a written notice on the workers and the Department of Labor and Employment at least one (1)
month before the intended date thereof." In the case at bar, petitioner was given a notice of termination on October
11, 1991. On the same day, his services were terminated. He was thus denied his right to be given written notice
before the termination of his employment, and the question is the appropriate sanction for the violation of petitioner's
right.

To be sure, this is not the first time this question has arisen. In Subuguero v. NLRC,16 workers in a garment factory
were temporarily laid off due to the cancellation of orders and a garment embargo. The Labor Arbiter found that the
workers had been illegally dismissed and ordered the company to pay separation pay and backwages. The NLRC, on
the other hand, found that this was a case of retrenchment due to business losses and ordered the payment of
separation pay without backwages. This Court sustained the NLRC's finding. However, as the company did not
comply with the 30-day written notice in Art. 283 of the Labor Code, the Court ordered the employer to pay the
workers P2,000.00 each as indemnity.

The decision followed the ruling in several cases involving dismissals which, although based on any of the just
causes under Art. 282,17 were effected without notice and hearing to the employee as required by the implementing
rules.18 As this Court said: "It is now settled that where the dismissal of one employee is in fact for a just and valid
cause and is so proven to be but he is not accorded his right to due process, i.e., he was not furnished the twin
requirements of notice and opportunity to be heard, the dismissal shall be upheld but the employer must be
sanctioned for non-compliance with the requirements of, or for failure to observe, due process."19

The rule reversed a long standing policy theretofore followed that even though the dismissal is based on a just cause
or the termination of employment is for an authorized cause, the dismissal or termination is illegal if effected without
notice to the employee. The shift in doctrine took place in 1989 in Wenphil Corp. v. NLRC.20 In announcing the
change, this Court said:21

The Court holds that the policy of ordering the reinstatement to the service of an employee without loss of
seniority and the payment of his wages during the period of his separation until his actual reinstatement but
not exceeding three (3) years without qualification or deduction, when it appears he was not afforded due
process, although his dismissal was found to be for just and authorized cause in an appropriate proceeding
in the Ministry of Labor and Employment, should be re-examined. It will be highly prejudicial to the interests
of the employer to impose on him the services of an employee who has been shown to be guilty of the
charges that warranted his dismissal from employment. Indeed, it will demoralize the rank and file if the
undeserving, if not undesirable, remains in the service.

xxx     xxx     xxx
 However, the petitioner must nevertheless be held to account for failure to extend to private respondent his
right to an investigation before causing his dismissal. The rule is explicit as above discussed. The dismissal
of an employee must be for just or authorized cause and after due process. Petitioner committed an
infraction of the second requirement. Thus, it must be imposed a sanction for its failure to give a formal
notice and conduct an investigation as required by law before dismissing petitioner from employment.
Considering the circumstances of this case petitioner must indemnify the private respondent the amount of
P1,000.00. The measure of this award depends on the facts of each case and the gravity of the omission
committed by the employer.

The fines imposed for violations of the notice requirement have varied from P1,000.00 22 to P2,000.0023 to
P5,000.0024 to P10,000.00.25

Need for Reexamining the Wenphil Doctrine

Today, we once again consider the question of appropriate sanctions for violations of the notice experience during
the last decade or so with the Wenphil doctrine. The number of cases involving dismissals without the requisite notice
to the employee, although effected for just or authorized causes, suggest that the imposition of fine for violation of the
notice requirement has not been effective in deterring violations of the notice requirement. Justice Panganiban finds
the monetary sanctions "too insignificant, too niggardly, and sometimes even too late." On the other hand, Justice
Puno says there has in effect been fostered a policy of "dismiss now; pay later" which moneyed employers find more
convenient to comply with than the requirement to serve a 30-day written notice (in the case of termination of
employment for an authorized cause under Arts. 283-284) or to give notice and hearing (in the case of dismissals for
just causes under Art. 282).

For this reason, they regard any dismissal or layoff without the requisite notice to be null and void even though there
are just or authorized cause for such dismissal or layoff. Consequently, in their view, the employee concerned should
be reinstated and paid backwages.

Validity of Petitioner's Layoff Not Affected by Lack of Notice

We agree with our esteemed colleagues, Justices Puno and Panganiban, that we should rethink the sanction of fine
for an employer's disregard of the notice requirement. We do not agree, however, that disregard of this requirement
by an employer renders the dismissal or termination of employment null and void. Such a stance is actually a
reversion to the discredited pre-Wenphil rule of ordering an employee to be reinstated and paid backwages when it is
shown that he has not been given notice and hearing although his dismissal or layoff is later found to be for a just or
authorized cause. Such rule was abandoned in Wenphil because it is really unjust to require an employer to keep in
his service one who is guilty, for example, of an attempt on the life of the employer or the latter's family, or when the
employer is precisely retrenching in order to prevent losses.

The need is for a rule which, while recognizing the employee's right to notice before he is dismissed or laid off, at the
same time acknowledges the right of the employer to dismiss for any of the just causes enumerated in Art. 282 or to
terminate employment for any of the authorized causes mentioned in Arts. 283-284. If the Wenphil rule imposing a
fine on an employer who is found to have dismissed an employee for cause without prior notice is deemed ineffective
in deterring employer violations of the notice requirement, the remedy is not to declare the dismissal void if there are
just or valid grounds for such dismissal or if the termination is for an authorized cause. That would be to uphold the
right of the employee but deny the right of the employer to dismiss for cause. Rather, the remedy is to order the
payment to the employee of full backwages from the time of his dismissal until the court finds that the dismissal was
for a just cause. But, otherwise, his dismissal must be upheld and he should not be reinstated. This is because his
dismissal is ineffectual.

For the same reason, if an employee is laid off for any of the causes in Arts. 283-284, i.e., installation of a labor-
saving device, but the employer did not give him and the DOLE a 30-day written notice of termination in advance,
then the termination of his employment should be considered ineffectual and he should be paid backwages.
However, the termination of his employment should not be considered void but he should simply be paid separation
pay as provided in Art. 283 in addition to backwages.

Justice Puno argues that an employer's failure to comply with the notice requirement constitutes a denial of the
employee's right to due process. Prescinding from this premise, he quotes the statement of Chief Justice
Concepcion Vda. de Cuaycong v. Vda. de Sengbengco26 that "acts of Congress, as well as of the Executive, can
deny due process only under the pain of nullity, and judicial proceedings suffering from the same flaw are subject to
the same sanction, any statutory provision to the contrary notwithstanding." Justice Puno concludes that the
dismissal of an employee without notice and hearing, even if for a just cause, as provided in Art. 282, or for an
authorized cause, as provided in Arts. 283-284, is a nullity. Hence, even if just or authorized cause exist, the
employee should be reinstated with full back pay. On the other hand, Justice Panganiban quotes from the statement
in People v. Bocar27 that "[w]here the denial of the fundamental right of due process is apparent, a decision rendered
in disregard of that right is void for lack of jurisdiction."

Violation of Notice Requirement Not a Denial of Due Process

The cases cited by both Justices Puno and Panganiban refer, however, to the denial of due process by the State,
which is not the case here. There are three reasons why, on the other hand, violation by the employer of the notice
requirement cannot be considered a denial of due process resulting in the nullity of the employee's dismissal or
layoff.

The first is that the Due Process Clause of the Constitution is a limitation on governmental powers. It does not apply
to the exercise of private power, such as the termination of employment under the Labor Code. This is plain from the
text of Art. III, §1 of the Constitution, viz.: "No person shall be deprived of life, liberty, or property without due process
of law. . . ." The reason is simple: Only the State has authority to take the life, liberty, or property of the individual. The
purpose of the Due Process Clause is to ensure that the exercise of this power is consistent with what are considered
civilized methods.

The second reason is that notice and hearing are required under the Due Process Clause before the power of
organized society are brought to bear upon the individual. This is obviously not the case of termination of employment
under Art. 283. Here the employee is not faced with an aspect of the adversary system. The purpose for requiring a
30-day written notice before an employee is laid off is not to afford him an opportunity to be heard on any charge
against him, for there is none. The purpose rather is to give him time to prepare for the eventual loss of his job and
the DOLE an opportunity to determine whether economic causes do exist justifying the termination of his
employment.

Even in cases of dismissal under Art. 282, the purpose for the requirement of notice and hearing is not to comply with
Due Process Clause of the Constitution. The time for notice and hearing is at the trial stage. Then that is the time we
speak of notice and hearing as the essence of procedural due process. Thus, compliance by the employer with the
notice requirement before he dismisses an employee does not foreclose the right of the latter to question the legality
of his dismissal. As Art. 277(b) provides, "Any decision taken by the employer shall be without prejudice to the right of
the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the
National Labor Relations Commission."

Indeed, to contend that the notice requirement in the Labor Code is an aspect of due process is to overlook the fact
that Art. 283 had its origin in Art. 302 of the Spanish Code of Commerce of 1882 which gave either party to the
employer-employee relationship the right to terminate their relationship by giving notice to the other one month in
advance. In lieu of notice, an employee could be laid off by paying him a mesada equivalent to his salary for one
month.28 This provision was repealed by Art. 2270 of the Civil Code, which took effect on August 30, 1950. But on
June 12, 1954, R.A. No. 1052, otherwise known as the Termination Pay Law, was enacted reviving the mesada. On
June 21, 1957, the law was amended by R.A. No. 1787 providing for the giving of advance notice or the payment of
compensation at the rate of one-half month for every year of service.29

The Termination Pay Law was held not to be a substantive law but a regulatory measure, the purpose of which was
to give the employer the opportunity to find a replacement or substitute, and the employee the equal opportunity to
look for another job or source of employment. Where the termination of employment was for a just cause, no notice
was required to be given to the, employee.30 It was only on September 4, 1981 that notice was required to be given
even where the dismissal or termination of an employee was for cause. This was made in the rules issued by the
then Minister of Labor and Employment to implement B.P. Blg. 130 which amended the Labor Code. And it was still
much later when the notice requirement was embodied in the law with the amendment of Art. 277(b) by R.A. No.
6715 on March 2, 1989. It cannot be that the former regime denied due process to the employee. Otherwise, there
should now likewise be a rule that, in case an employee leaves his job without cause and without prior notice to his
employer, his act should be void instead of simply making him liable for damages.
The third reason why the notice requirement under Art. 283 can not be considered a requirement of the Due Process
Clause is that the employer cannot really be expected to be entirely an impartial judge of his own cause. This is also
the case in termination of employment for a just cause under Art. 282 (i.e., serious misconduct or willful disobedience
by the employee of the lawful orders of the employer, gross and habitual neglect of duties, fraud or willful breach of
trust of the employer, commission of crime against the employer or the latter's immediate family or duly authorized
representatives, or other analogous cases).

Justice Puno disputes this. He says that "statistics in the DOLE will prove that many cases have been won by
employees before the grievance committees manned by impartial judges of the company." The grievance machinery
is, however, different because it is established by agreement of the employer and the employees and composed of
representatives from both sides. That is why, in Batangas Laguna Tayabas Bus Co. ·v. Court of Appeals,31 which
Justice Puno cites, it was held that "Since the right of [an employee] to his labor is in itself a property and that the
labor agreement between him and [his employer] is the law between the parties, his summary and arbitrary dismissal
amounted to deprivation of his property without due process of law." But here we are dealing with dismissals and
layoffs by employers alone, without the intervention of any grievance machinery. Accordingly in Montemayor v.
Araneta University Foundation,32 although a professor was dismissed without a hearing by his university, his dismissal
for having made homosexual advances on a student was sustained, it appearing that in the NLRC, the employee was
fully heard in his defense.

Lack of Notice Only Makes Termination Ineffectual

Not all notice requirements are requirements of due process. Some are simply part of a procedure to be followed
before a right granted to a party can be exercised. Others are simply an application of the Justinian precept,
embodied in the Civil Code,33 to act with justice, give everyone his due, and observe honesty and good faith toward
one's fellowmen. Such is the notice requirement in Arts. 282-283. The consequence of the failure either of the
employer or the employee to live up to this precept is to make him liable in damages, not to render his act (dismissal
or resignation, as the case may be) void. The measure of damages is the amount of wages the employee should
have received were it not for the termination of his employment without prior notice. If warranted, nominal and moral
damages may also be awarded.

We hold, therefore, that, with respect to Art. 283 of the Labor Code, the employer's failure to comply with the notice
requirement does not constitute a denial of due process but a mere failure to observe a procedure for the termination
of employment which makes the termination of employment merely ineffectual. It is similar to the failure to observe
the provisions of Art. 1592, in relation to Art. 1191, of the Civil Code 34 in rescinding a contract for the sale of
immovable property. Under these provisions, while the power of a party to rescind a contract is implied in reciprocal
obligations, nonetheless, in cases involving the sale of immovable property, the vendor cannot exercise this power
even though the vendee defaults in the payment of the price, except by bringing an action in court or giving notice of
rescission by means of a notarial demand.35 Consequently, a notice of rescission given in the letter of an attorney has
no legal effect, and the vendee can make payment even after the due date since no valid notice of rescission has
been given.36

Indeed, under the Labor Code, only the absence of a just cause for the termination of employment can make the
dismissal of an employee illegal. This is clear from Art. 279 which provides:

Security of Tenure. — In cases of regular employment, the employer shall not terminate the services of an
employee except for a  just cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges
and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent
computed from the time his compensation was withheld from him up to the time of his actual reinstatement.37

Thus, only if the termination of employment is not for any of the causes provided by law is it illegal and, therefore, the
employee should be reinstated and paid backwages. To contend, as Justices Puno and Panganiban do, that even if
the termination is for a just or authorized cause the employee concerned should be reinstated and paid backwages
would be to amend Art. 279 by adding another ground for considering a dismissal illegal. What is more, it would
ignore the fact that under Art. 285, if it is the employee who fails to give a written notice to the employer that he is
leaving the service of the latter, at least one month in advance, his failure to comply with the legal requirement does
not result in making his resignation void but only in making him liable for damages.38 This disparity in legal treatment,
which would result from the adoption of the theory of the minority cannot simply be explained by invoking resident
Ramon Magsaysay's motto that "he who has less in life should have more in law." That would be a misapplication of
this noble phrase originally from Professor Thomas Reed Powell of the Harvard Law School.
Justice Panganiban cites Pepsi-Cola Bottling Co. v. NLRC,39 in support of his view that an illegal dismissal results not
only from want of legal cause but also from the failure to observe "due process." The Pepsi-Cola case actually
involved a dismissal for an alleged loss of trust and confidence which, as found by the Court, was not proven. The
dismissal was, therefore, illegal, not because there was a denial of due process, but because the dismissal was
without cause. The statement that the failure of management to comply with the notice requirement "taints the
dismissal with illegality" was merely a dictum thrown in as additional grounds for holding the dismissal to be illegal.

Given the nature of the violation, therefore, the appropriate sanction for the failure to give notice is the payment of
backwages for the period when the employee is considered not to have been effectively dismissed or his employment
terminated. The sanction is not the payment alone of nominal damages as Justice Vitug contends.

Unjust Results of Considering Dismissals/Layoffs Without Prior Notice As Illegal

The refusal to look beyond the validity of the initial action taken by the employer to terminate employment either for
an authorized or just cause can result in an injustice to the employer. For not giving notice and hearing before
dismissing an employee, who is otherwise guilty of, say, theft, or even of an attempt against the life of the employer,
an employer will be forced to keep in his employ such guilty employee. This is unjust.

It is true the Constitution regards labor as "a primary social economic force." 40 But so does it declare that it
"recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to
needed investment."41 The Constitution bids the State to "afford full protection to labor." 42 But it is equally true that "the
law, in protecting the right's of the laborer, authorizes neither oppression nor self-destruction of the employer."43 And it
is oppression to compel the employer to continue in employment one who is guilty or to force the employer to remain
in operation when it is not economically in his interest to do so.

In sum, we hold that if in proceedings for reinstatement under Art. 283, it is shown that the termination of employment
was due to an authorized cause, then the employee concerned should not be ordered reinstated even though there is
failure to comply with the 30-day notice requirement. Instead, he must be granted separation pay in accordance with
Art. 283, to wit:

In case of termination due to the installation of labor-saving devices or redundancy, the worker affected
thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one
month for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases
of closures or cessation of operations of establishment or undertaking not due to serious business losses or
financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2)
month pay for every year of service, whichever is higher. A fraction of at least six months shall be
considered one (1) whole year.

If the employee's separation is without cause, instead of being given separation pay, he should be reinstated. In
either case, whether he is reinstated or only granted separation pay, he should be paid full backwages if he has been
laid off without written notice at least 30 days in advance.

On the other hand, with respect to dismissals for cause under Art. 282, if it is shown that the employee was dismissed
for any of the just causes mentioned in said Art. 282, then, in accordance with that article, he should not be
reinstated. However, he must be paid backwages from the time his employment was terminated until it is determined
that the termination of employment is for a just cause because the failure to hear him before he is dismissed renders
the termination of his employment without legal effect.

WHEREFORE, the petition is GRANTED and the resolution of the National Labor Relations Commission is
MODIFIED by ordering private respondent Isetann Department Store, Inc. to pay petitioner separation pay equivalent
to one (1) month pay for every year of service, his unpaid salary, and his proportionate 13th month pay and, in
addition, full backwages from the time his employment was terminated on October 11, 1991 up to the time the
decision herein becomes final. For this purpose, this case is REMANDED to the Labor Arbiter for computation of the
separation pay, backwages, and other monetary awards to petitioner.

SO ORDERED.
Davide, Jr., C.J., Melo, Kapunan, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and De Leon, Jr.,
JJ., concur.
Bellosillo J., Please see Separate Opinion.
Puno, J., Please see Dissenting Opinion.
Vitug, J., Please see Separate opinion.
Panganiban J., Please see Separate Opinion.
Ynares-Santiago, J., I join the dissenting opinion of J. Puno.

Separate Opinions

BELLOSILLO, J., separate opinion;

We point out at the outset that this Petition for Review which was filed before the promulgation of  St. Martin Funeral
Home v. National Labor Relations Commission,1 is not the proper means by which NLRC decisions are appealed to
this Court. Before St. Martin Funeral Home, it was only through a Petition for  Certiorari under Rule 65 that NLRC
decisions could be reviewed and nullified by us on the ground of lack of jurisdiction or grave abuse of discretion
amounting to lack or excess of jurisdiction. After St. Martin Funeral Home, petitions like the one at bar are initially filed
in the Court of Appeals for proper adjudication.

In the interest of justice, however, and in order to write finis to the instant case which has already dragged on for so
long, we shall treat the petition pro hac vice as one for certiorari under Rule 65 although it is captioned Petition for
Review on Certiorari; after all, it was filed within the reglementary period for the filing of a petition for  certiorari under
Rule 65.

Briefly, on 4 April 1985 private respondent Isetann Department Store, Inc. (ISETANN), employed petitioner Ruben
Serrano as Security Checker until his appointment as Security Section Head. On October 1991 ISETANN through its
Human Resource Division Manager Teresita A. Villanueva sent Serrano a memorandum terminating his employment
effective immediately "in view of the retrenchment program of the company," and directing him to secure clearance
from their office.2

Petitioner Serrano filed with the NLRC Adjudication Office a complaint for illegal dismissal and underpayment of
wages against ISETANN. Efforts at amicable settlement proved futile. Ms. Cristina Ramos, Personnel Administration
Manager of ISETANN, testified that the security checkers and their section head were retrenched due to the
installation of a labor saving device, i.e., the hiring of an independent security agency.

Finding the dismissal to be illegal, the Labor Arbiter ordered the immediate reinstatement of Serrano to his former or
to an equivalent position plus payment of back wages, unpaid wages, 13th month pay and attorney's fees.

On appeal the NLRC reversed the Labor Arbiter and ruled that ISETANN acted within its prerogative when it phased
out its Security Section and retained the services of an independent security agency in order to cut costs and
economize. Upon denial of his motion for reconsideration3 Serrano filed the instant petition imputing grave abuse of
discretion on the part of the NLRC.

Art. 282 of the Labor Code enumerates the just causes for the termination of employment by the employer: (a)
serious misconduct or willful disobedience by the employee of the lawful orders of his employer or the latter's
representative in connection with the employee's work; (b) gross and habitual neglect by the employee of his duties;
(c) fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized
representative; (d) commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representative; and, (e) other causes analogous to the
foregoing.
On the other hand, Arts. 283 and 284 of the same Code enumerate the so-called authorized causes: (a) installation of
labor saving devices; (b) redundancy: (b) retrenchment to prevent losses; (d) closure or cessation of the
establishment or undertaking unless the closure or cessation is for the purpose of circumventing the provisions of the
law; and, (e) disease.

The Just causes enumerated under Art. 282 of the Labor Code are provided by the employee who causes the
infraction. The authorized causes are provided by the employer either because of outside factors such as the general
decline in the economy or merely part of its long range plan for business profitability. Corollarily, in termination for a
just cause, the employee is not entitled to separation pay unlike in termination for an authorized cause. In addition,
the basis in computing the amount of separation pay varies depending on whether the termination is due to the
installation of a labor saving device, or redundancy, in which case, the employee is entitled to receive separation pay
equivalent to at least one (1) month pay or to at least one (1) month pay for every year of service. In case the
termination is due to retrenchment in order to prevent losses or in case of closure or cessation of operation of the
establishment or undertaking not due to serious business losses or financial reverses, the separation pay is
lower, i.e., equivalent to one (1) month pay or at least one-half month pay for every year of service, whichever is
higher. As may be gleaned from the foregoing, where the cause of termination is for the financial advantage or benefit
of the employer, the basis in computing for separation pay is higher compared to termination dictated by necessity
with no appreciable financial advantage to the employer.

In the instant case, we agree with the NLRC that the dismissal of petitioner Serrano was for an authorized cause, i.e.,
redundancy, which exists where the services of an employee are in excess of what are reasonably demanded by the
actual requirements of the enterprise. A position is redundant where it is superfluous, and the superfluity may be the
outcome of other factors such as overhiring of workers, decreased volume of other business, or dropping of a
particular product line or service activity previously manufactured or undertaken by the enterprise.4

The hiring of an independent security agency is a business decision properly within the exercise of management
prerogative. As such, this Court is denied the authority to delve into its wisdom although it is equipped with the power
to determine whether the exercise of such prerogative is in accordance with law. Consequently, the wisdom or
soundness of the management decision is not subject to the discretionary review of the Labor Arbiter nor of the
NLRC unless there is a violation of law or arbitrariness in the exercise thereof, in which case, this Court will step
in.5 Specifically, we held in International Harvester Macleod, Inc. v. Intermediate Appellate Court 6 that the
determination of whether to maintain or phase out an entire department or section or to reduce personnel lies with
management. The determination of the need for the phasing out of a department as a labor and cost saving device
because it is no longer economical to retain its services is a management prerogative.

After having established that the termination of petitioner Ruben Serrano was for an authorized cause, we now
address the issue of whether proper procedures were observed in his dismissal.

Since the State affords protection to labor under the Constitution, 7 workers enjoy security of tenure and may only be
removed or terminated upon valid reason and through strict observance of proper procedure. 8 Article 279 of the Labor
Code specifically provides —

Art. 279. Security of Tenure. — In cases of regular employment, the employer shall not terminate the
services of an employee except for a just cause or when authorized by this Title. An employee who is
unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other
privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was withheld from him up to the time of his actual
reinstatement.

Security of tenure however does not guarantee perpetual employment. If there exists a just or an authorized cause,
the employer may terminate the services of an employee but subject always to procedural requirements. The
employer cannot be legally compelled to have in its employ a person whose continued employment is patently
inimical to its interest. The law, while affording protection to the employee, does not authorize the oppression or
destruction of his employer.9

Subject then to the constitutional right of workers to security of tenure and to be protected against dismissal except
for a just or authorized cause, and without prejudice to the requirement of notice under Art. 283 of the Labor Code,
the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a
statement of the cause of termination and shall afford the latter ample opportunity to be heard and to defend himself
with the assistance of his representative, if he so desires, in accordance with company rules and regulations
promulgated pursuant to guidelines set by the DOLE.10

As specifically provided in Art. 283 of the Labor Code, the employer may terminate the employment of any employee
due to redundancy by serving a written notice on the worker and the DOLE at least one (1) month before the intended
date thereof. In the instant case, ISETANN clearly violated the provisions of Art. 283 on notice. 11 It did not send a
written notice to DOLE which is essential because the right to terminate an employee is not an absolute prerogative.
The lack of written notice denied DOLE the opportunity to determine the validity of the termination.

The written notice ISETANN sent to Serrano was dated 11 October 1991 or on the same day the intended
termination was to take effect. This obviously did not comply with the 30-day mandatory requirement. Although the
cause for discharge may be just or authorized, it is still necessary and obligatory to afford the employee concerned
his basic and more important right to notice. Serrano was not given the chance to make the needed adjustments
brought about by his termination. Significantly, the notice is intended to enable the employee not only to prepare
himself for the legal battle to protect his tenure of employment, which can be long, arduous, expensive and
complicated by his own standards, but also to find other means of employment and ease the impact of the loss of his
job and, necessarily, has income.

We are of the view that failure to send notice of termination to Serrano is not tantamount to violation of his
constitutional right to due process but merely constitutes non-compliance with the provision on notice under Art. 283
of the Labor Code.

The legitimacy of a government is established and its functions delineated in the Constitution. From the Constitution
flows all the powers of government in the same manner that it sets the limits for their proper exercise. In particular,
the Bill of Rights functions primarily as a deterrent to any display of arbitrariness on the part of the government or any
of its instrumentalities. It serves as the general safeguard, as is apparent in its first section which states, "No person
shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal
protection of the laws."12 Specifically, due process is a requirement for the validity of any governmental action
amounting to deprivation of liberty.13 It is a restraint on state action not only in terms of what it amounts to but how it is
accomplished. Its range thus covers both the ends sough to be achieved by officialdom as well as the means for their
realization.14

Substantive due process is a weapon that may be utilized to challenge acts of the legislative body, whether national
or local, and presumably executive orders of the President and administrative orders and regulations of a rule-making
character. Procedural due process, on the other hand, is available for the purpose of assailing arbitrariness or
unreasonableness in the administration of the law by executive department or the judicial branch. Procedural due
process likewise may aid those appearing before Congressional committees if the proceedings are arbitrary or
otherwise unfair.13

Procedural due process demands that governmental acts, more specifically so in the case of the judiciary, not be
affected with arbitrariness.16 The same disinterestedness required of men on the bench must characterize the
actuations of public officials, not excluding the President, to satisfy the requirements of procedural due process.17

In his dissent Mr. Justice Puno states that "the new majority opinion limiting violations of due process to government
action alone is a throwback to a regime of law long discarded by more progressive countries." He opines that "today,
private due process is a settled norm in administrative law," citing Schwartz, an authority in administrative law.

We beg to disagree. A careful reading of Schwartz would reveal that requirements of procedural due process
extended from governmental to private action only in instances where there is "sufficient governmental involvement"
or "the private action was so saturated with governmental incidents."

The cardinal primary requirements of due process in administrative proceedings were highlighted in Ang Tibay v.
Court of Industrial Relations:18 (a) the right to a hearing, which includes the right to present one's case and submit
evidence in support thereof; (b) the tribunal must consider the evidence presented; (c) the decision must have
something to support itself; (d) the evidence must be substantial; (e) the decision must be based on the evidence
presented at the hearing, or at least contained in the record and disclosed to the parties affected; (f) the tribunal or
body or any of its judges must act on its own independent consideration of the law and facts of the controversy, and
not simply accept the views of a subordinate; (g) the board or body should, in all controversial questions, render its
decision in such manner that the parties to the proceeding may know the various issues involved, and the reason for
the decision rendered.

Also in Lumiqued v. Exevea19 it was held —

In administrative proceedings, the essence of due process is simply the opportunity to explain one's side.
One may be heard, not solely by verbal presentation but also, and perhaps even more creditably as it is
more practicable than oral arguments, through pleadings. An actual hearing is not always an indispensable
aspect of due process. As long as a party was given the opportunity to defend his interests in due course, he
cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence
of due process.

From the foregoing, it is clear that the observance of due process is demanded in governmental acts. Particularly in
administrative proceedings, due process starts with the tribunal or hearing officer and not with the employer. In the
instant case, what is mandated of the employer to observe is the 30-day notice requirement. Hence, non-observance
of the notice requirement is not denial of due process but merely a failure to comply with a legal obligation for which
we strongly recommend, we impose a disturbance compensation as discussed hereunder.

In the instant case, we categorically declare that Serrano was not denied his right to due process. Instead, his
employer did not comply with the 30-day notice requirement. However, while Serrano was not given the required 30-
day notice, he was nevertheless given and, in fact, took advantage of every opportunity to be heard, first, by the
Labor Arbiter, second, by the NLRC, and third, by no less than this Court. Before the Labor Arbiter and the NLRC,
petitioner had the opportunity to present his side not only orally but likewise through proper pleadings and position
papers.

It is not correct therefore to say that petitioner was deprived of his right to due process.

We have consistently upheld in the past as valid although irregular the dismissal of an employee for a just or
authorized cause but without notice and have imposed a sanction on the erring employers in the form of damages for
their failure to comply with the notice requirement. We discussed the rationale behind this ruling in Wenphil
Corporation v. NLRC20 thus —

The Court holds that the policy of ordering reinstatement to the service of an employee without loss of
seniority and the payment of his wages during the period of his separation until his actual reinstatement but
not exceeding three years without qualification or deduction, when it appears he was not afforded due
process, although his dismissal was found to be for just and authorized cause in an appropriate proceeding
in the Ministry of Labor and Employment should be re-examined. It will be highly prejudicial to the interests
of the employer to impose on him the services of an employee who has been shown to be guilty of the
charges that warranted his dismissal from employment. Indeed, it will demoralize the rank and file if the
undeserving, if not undesirable, remains in the service . . . . However, the petitioner must nevertheless be
held to account for failure to extend to private respondent his right to an investigation before causing his
dismissal. The rule is explicit as above discussed. The dismissal of an employee must be for just or
authorized cause and after due process. Petitioner committed an infraction of the second requirement. Thus,
it must be imposed a sanction for its failure to give a formal notice and conduct an investigation as required
by law before dismissing petitioner from employment. Considering the circumstances of this case petitioner
must indemnify private respondent the amount of P1,000.00. The measure of this award depends on the
facts of each case and the gravity of the omission committed by the employer (emphasis supplied).

In Sebuguero v. National Labor Relations Commission 21 Mr. Justice Davide Jr., now Chief Justice, made this clear
pronouncement —

It is now settled that where the dismissal of an employee is in fact for a just and valid cause and is so proven
to be but he is not accorded his right to due process, i.e. he was not furnished the twin requirements of
notice and the opportunity to be heard, the dismissal shall be upheld but the employer must be sanctioned
for non-compliance with the requirements of or for failure to observe due process. The sanction, in the
nature of indemnification or penalty, depends on the facts of each case and the gravity of the omission
committed by the employer.
This ruling was later ably amplified by Mr. Justice Puno in Nath v. National Labor Relations Commission 22 where he
wrote —

The rules require the employer to furnish the worker sought to be dismissed with two written notices before
termination of employment can be legally effected: (1) notice which apprises the employee of the particular
acts or omissions for which his dismissal is sought; and (2) the subsequent notice which informs the
employee of the employer's decision to dismiss him. In the instant case, private respondents have failed to
furnish petitioner with the first of the required two (2) notices and to state plainly the reasons for the
dismissal in the termination letter. Failure to comply with the requirements taints the dismissal with illegality.

Be that as it may, private respondent can dismiss petitioner for just cause . . . . We affirm the finding of the
public respondent that there was just cause to dismiss petitioner, a probationary employee  (emphasis
supplied).

Also, in Camua v. National Labor Relations Commission23 this Court through Mr. Justice Mendoza decreed —

In the case at bar, both the Labor Arbiter and the NLRC found that no written notice of the charges had been
given to petitioner by the respondent company. . . . Accordingly, in accordance with the well-settled rule,
private respondents should pay petitioner P1,000.00 as indemnity for violation of his right to due process . . .
. Although an employee validy dismissed for cause he may nevertheless be given separation pay as a
measure of social justice provided the cause is not serious misconduct reflecting on his moral character
(emphasis supplied).

Non-observance of this procedural requirement before would cause the employer to be penalized by way of paying
damages to the employee the amounts of which fluctuated through the years. Thus, for just cause the indemnity
ranged from P1,000.00 to P10,000.00.24 For authorized cause, as distinguished from just cause, the award ranged
from P2,000.00 to P5,000.00.25

This Court has also sanctioned the ruling that a dismissal for a just or authorized cause but without observance of the
mandatory 30-day notice requirement was valid although considered irregular. The Court ratiocinated that employers
should not be compelled to keep in their employ undesirable and undeserving laborers. For the irregularity, i.e., the
failure to observe the 30-day notice of termination, the employer was made to pay a measly sum ranging from
P1,000.00 to P10,000.00.

With regard to the indemnity or penalty, which we prefer seriously to be referred to as "disturbance compensation,"
the Court has awarded varying amounts depending on the circumstances of each case and the gravity of the
commission. We now propose that the amount of the award be uniform and rational and not arbitrary. The reason for
the proposal or modification is that in their non-compliance with the 30-day notice requirement the erring employers,
regardless of the peculiar circumstances of each case, commit the infraction only by the single act of not giving any
notice to their workers. It cannot be gainfully said that the infraction in one case is heavier than in the other as the
non-observance constitutes one single act. Thus, if the dismissal is illegal, i.e. there is no just or authorized cause, a
disturbance compensation in the amount of P10,000.00 may be considered reasonable. If the dismissal is for a just
cause but without notice, a disturbance compensation in the amount P5,000.00 may be given. In termination for an
authorized cause and the notice requirement was not complied with, we distinguish further: If it is to save the
employer from imminent bankruptcy or business losses, the disturbance compensation to be given is P5,000.00. If
the authorized cause was intended for the employer to earn more profits, the amount of disturbance compensation is
P10,000.00. This disturbance compensation, again we strongly recommend, should be given to the dismissed
employee at the first instance, the moment it is shown that his employer has committed the infraction — of not
complying with the 30-day written notice requirement — to tide him over during his economic dislocation.

The right of the laborers to be informed of their impending termination cannot be taken lightly, and the award of any
amount below P5,000.00 may be too anemic to satisfy the fundamental protection especially accorded to labor and
the workingman. In fact, it is hardly enough to sustain a family of three; more so if the employee has five or more
children, which seems to be the average size of a Filipino family.

Henceforth, if the dismissal is for a just cause but without observance of the 30-day notice requirement, the dismissal
is deemed improper and irregular. If later the dismissal is ascertained to be without just cause, the dismissed
employee is entitled to reinstatement, if this be feasible, otherwise to separation pay and back wages plus
disturbance compensation of P10,000.00 and moral damages, if warranted. On the other hand, if the dismissal is
ascertained to be with just cause, the dismissed employee is entitled nevertheless to a disturbance compensation of
P5,000.00 if the legal requirement of the 30-day notice to both employee and DOLE has not been complied with.

In instances where there is obviously a ground for dismissal, as when the employee has become violent and his
presence would cause more harm to his co-workers and the security and serenity of the workplace, the employee
may be suspended in the meantime until he is heard with proper observance of the 30-day notice requirement.
Likewise, if the dismissal is for an authorized cause but without the required notice, the dismissal is improper and
irregular and the employee should be paid separation pay, back wages and disturbance compensation of P5,000.00
or P10,000.00.00 depending on the cause. As already intimated, if the authorized cause is for the purpose of saving
the employer from imminent bankruptcy or business losses, the disturbance compensation should be P5,000.00;
otherwise, if the authorized cause is for the employer, in the exercise of management prerogative, to save and earn
more profits, the disturbance compensation should be P10,000.00.

In the instant case, Serrano was given his walking papers only on the very same day his termination was to take
effect. DOLE was not served any written notice. In other words, there was non-observance of the 30-day notice
requirement to both Serrano and the DOLE. Serrano was thus terminated for an authorized cause but was not
accorded his right to 30-day notice. Thus, his dismissal being improper and irregular, he is entitled to separation pay
and back wages the amounts of which to be determined by the Labor Arbiter, plus P10,000.00 as disturbance
compensation which, from its very nature, must be paid immediately to cushion the impact of his economic
dislocation.

One last note. This Separate Opinion is definitely not advocating a new concept in imposing the so-called
"disturbance compensation." Since Wenphil Corporation v. NLRC  26 this Court has already recognized the necessity
of imposing a sanction in the form of indemnity or even damages, when proper, not specifically provided by any law,
upon employers who failed to comply with the twin-notice requirement. At the very least, what is being proposed to be
adopted here is merely a change in the terminology used, i.e., from "sanction," "indemnity," "damages" or "penalty,"
to "disturbance compensation" as it is believed to be the more appropriate term to accurately describe the lamentable
situation of our displaced employees.

Indeed, from the time the employee is dismissed from the service without notice — in this case since 11 October
1991 — to the termination of his case, assuming it results in his reinstatement, or his being paid his back wages and
separation pay, as the case may be, how long must he be made to suffer emotionally and bear his financial burden?
Will reinstating him and/or paying his back wages adequately make up for the entire period that he was indistress for
want of any means of livelihood? Petitioner Serrano has been deprived of his only source of income — his
employment — for the past eight (8) years or so. Will his reinstatement and/or the payment of his back wages and
separation pay enable him to pay off his debts incurred in abject usury — to which he must have succumbed —
during his long period of financial distress? Will it be adequate? Will it be just? Will it be fair? Thus, do we really and
truly render justice to the workingman by simply awarding him full back wages and separation pay without regard for
the long period during which he was wallowing in financial difficulty?

FOR ALL THE FOREGOING, the Decision of respondent National Labor Relations Commission should be
MODIFIED. The termination of petitioner RUBEN SERRANO being based on an authorized cause should be
SUSTAINED AS VALID although DECLARED IRREGULAR for having been effected without the mandatory 30-day
notice.

ISETANN DEPARTMENT STORE INC. should PAY petitioner SERRANO back wages and separation pay the
amounts of which to be determined by the Labor Arbiter, plus P10,000.00 as disturbance compensation which must
be paid immediately. Consequently, except as regards the disturbance compensation, the case should be
REMANDED to the Labor Arbiter for the immediate computation and payment of the back wages and separation pay
due petitioner.

EXCEPT as herein stated, I concur with the majority.

PUNO, J., dissenting opinion;
The rule of audi alteram partem — hear the other side, is the essence of procedural due process. That a "party is not
to suffer in person or in purse without an opportunity of being heard" is the oldest established principle in
administrative law.1 Today, the majority is relies that the all important right of an employee to be notified before he is
dismissed for a just or authorized cause is not a requirement of due process. This is a blow on the breadbasket of our
lowly employees, a considerable erosion of their constitutional right to security of tenure, hence this humble
dissenting opinion.

A review of our law on dismissal is in order.

I. DISMISSAL DUE TO JUST CAUSE

The law allowing dismissal of an employee due to a just cause is provided in Article 282 of the Labor Code:

Art. 282. Termination by employer. — An employer may terminate an employment for any of the following
causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer
or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative;

(d) Commission of the crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representative; and

(e) Other causes analogous to the foregoing.

The long established jurisprudence2 is that to justify dismissal of an employee for a just cause, he must be given two
kinds of notice by his employer, viz: (1) notice to apprise the employee of the particular acts or omissions for which
the dismissal is sought, and (2) subsequent notice to inform him of the employer's decision to dismiss him. Similarly,
deeply ingrained is our ruling that these pre and post notice requirements are not mere technicalities but are
requirements of due process.3

Then came the case of Wenphil Corporation vs.  NLRC and Mallare in 1989.4 It is the majority view that Wenphil
reversed the long standing policy of this Court on dismissal. This is too broad a reading of Wenphil. A careful
statement of the facts of Wenphil and the ruling of this Court is thus proper.

First, the facts. The private respondent Roberto Mallare is the assistant head of the backroom department of
petitioner Wenphil Corporation. At about 2:30 pm on May 20, 1985, Mallare had an altercation with his co-employee,
Job Barrameda, about tending the Salad Bar. He slapped Barrameda's cap, stepped on his foot, picked up an ice
scooper and brandished it against the latter. He refused to be pacified by another employee who reported the incident
to Delilah Hermosura, assistant manager. Hermosura summoned Mallare but the latter refused to see the former. It
took a security guard to bring Mallare to Hermosura. Instead of making an explanation, Mallare shouted profane
words against Hermosura. He declared that their altercation should only be settled by him and Barrameda.

The following morning, Mallare was suspended. In the afternoon, he was dismissed from the service. He received an
official notice of his dismissal four (4) days later.

Mallare filed with the Labor Arbiter a complaint for illegal suspension, illegal dismissal and unfair labor practice. No
hearing was conducted in view of the repeated absence of the counsel of Mallare. The parties submitted their
respective position papers. On December 3, 1986, the Arbiter denied the complaint as he found Mallare guilty of
grave misconduct and insubordination, which are just causes for dismissal. The Arbiter also ruled that Mallare was
not denied due process. On appeal, the NLRC reversed. It held that Mallare was denied due process before he was
dismissed. It ordered Mallare's reinstatement and the payment of his one (1) year backwages.
On certiorari to this Court, we reversed the NLRC and reinstated the decision of the Arbiter with the modification that
petitioner should pay to Mallare an indemnity of P1,000.00 for dismissing Mallare without any notice and hearing. We
held:

Petitioner insists that private respondent was afforded due process but he refused to avail of his right to the
same; that when the matter was brought to the labor arbiter he was able to submit his position paper
although the hearing cannot proceed due to the non-appearance of his counsel; and that the private
respondent is guilty of serious misconduct in threatening or coercing a co-employee which is a ground for
dismissal under Article 283 of the Labor Code.

The failure of petitioner to give private respondent the benefit of a hearing before he was dismissed
constitutes an infringement of his constitutional right to due process of law and equal protection of the laws.
The standards of due process in judicial as well as administrative proceedings have long been established.
In its bare minimum due process of law simply means giving notice and opportunity to be heard before
judgment is rendered.

The claim of petitioner that a formal investigation was not necessary because the incident, which gave rise
to the termination of private respondent, was witnessed by his co-employees and supervisors, is without
merit. The basic requirement of due process is that which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial.

However, it is a matter of fact that when the private respondent filed a complaint against petitioner, he was
afforded the right to an investigation by the labor arbiter. He presented his position paper as did the
petitioner. If no hearing was had, it was the fault of private respondent as his counsel failed to appear at the
scheduled hearings. The labor arbiter concluded that the dismissal of private respondent was for just cause.
He was found guilty of grave misconduct and insubordination. This is borne by the sworn statements of
witnesses. The Court is bound by this finding of the labor arbiter.

By the same token, the conclusion of the public respondent NLRC on appeal that private respondent was
not afforded due process before he was dismissed is binding on this Court. Indeed, it is well taken and
supported by the records. However, it can not justify a ruling that private respondent should be reinstated
with back wages as the public respondent NLRC so decreed. Although belatedly, private respondent was
afforded due process before the labor arbiter wherein the just cause of his dismissal had been established.
With such finding, it would be arbitrary and unfair to order his reinstatement with back wages.

Three member of the Court filed concurring and dissenting opinions. Madam Justice Herrera opined that: (a) Mallare
was dismissed for cause, hence, he is not entitled to reinstatement and backwages; (b) he was not denied due
process; and (c) he has no right to any indemnity but to separation pay to cushion the impact of his loss of
employment Mr. Justice Padilla took the view that: (1) Mallare was not entitled to reinstatement and backwages as he
was guilty of grave misconduct and insubordination; (2) he was denied administrative due process; and (3) for making
such denial, Wenphil should pay "separation pay (instead of indemnity) in the sum of P1,000.00." Madam Justice
Cortes held that: (1) Mallare was not illegally dismissed; (2) he was not denied due process; (3) he was not entitled to
indemnity; and (4) if P1,000.00 was to be imposed on Wenphil as an administrative sanction, it should form part of
the public fund of the government.

I shall discuss later that Wenphil did not change our ruling that violation of the pre-dismissal notice requirement is an
infringement of due process.

II. DISMISSAL DUE TO AUTHORIZED CAUSE

The applicable law on dismissal due to authorized cause is Article 283 of the Labor Code which provides:

Art. 283. Closure of establishment and reduction of personnel. — The employer may also terminate the
employment of any employee due to the installation of labor serving devices, redundancy, retrenchment to
prevent losses or the closing or cessation of operation of the establishment or undertaking unless the
closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the
workers and the [Department] of Labor and Employment at least one (1) month before the intended date
thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker
affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at
 least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent
losses and in cases of closures or cessation of operations of establishment or undertaking not due to
serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or
at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6)
months shall be considered one (1) whole year.

In Sebuguero v.  NLRC,5 we held thru our esteemed Chief Justice Davide that "the requirement of notice to both the
employees concerned and the Department of Labor and Employment (DOLE) is mandatory and must be written and
given at least one month before the intended date of retrenchment." We explained that the "notice to the DOLE is
essential because the right to retrench is not an absolute prerogative of an employer but is subject to the requirement
of law that retrenchment be proved to prevent losses. The DOLE is the agency that will determine whether the
planned retrenchment is justified and adequately supported by fact."6 Nonetheless, we ruled:

The lack of written notice to the petitioners and to the DOLE does not, however, make the petitioners'
retrenchment illegal such that they are entitled to the payment of back wages and separation pay in lieu of
reinstatement as they contend. Their retrenchment, for not having been effected with the required notices, is
merely defective. In those cases where we found the retrenchment to be illegal and ordered the employees'
reinstatement and the payment of backwages, the validity of the cruse for retrenchment, that is the existence
of imminent or actual serious or substantial losses, was not proven. But here, such a cause is present as
found by both the Labor Arbiter and the NLRC. There is only a violation by GTI of the procedure prescribed
in Article 283 of the Labor Code in effecting the retrenchment of the petitioners.1âwphi1.nêt

It is now settled that where the dismissal of an employee is in fact for a just and valid cause and is so proven to be
but he is not accorded his right to due process, i.e., he was not furnished the twin requirements of notice and the
opportunity to be heard, the dismissal shall be upheld but the employer must be sanctioned for non-compliance with
the requirements of or for failure to observe due process. The sanction, in the nature of indemnification or penalty,
depends on the facts of each case and the gravity of the omission committed by the employer and has ranged from
P1,000.00 as in the cases of Wenphil vs. National Labor Relations Commission,  Seahorse Maritime Corp.
v.  National Labor Relations Commission, Shoemart, Inc. vs.  National Labor Relations Commission,  Rubberworld
(Phils.) Inc. vs. National Labor Relations Commission, Pacific Mills, Inc. vs. Alonzo, and  Aurelio vs. National Labor
Relations Commission to P10,000.00 in Reta vs. National Labor Relations Commission and  Alhambra Industries, Inc.
vs. National Labor Relations Commission. More recently, in Worldwide Papermills, Inc. vs. National Labor Relations
Commission, the sum of P5,000.00 was awarded to the employee as indemnification for the employer's failure to
comply with the requirements of procedural due process.

Accordingly, we affirm the deletion by the NLRC of the award of back wages, But because the required notices of the
petitioners' retrenchment were not served upon the petitioners and the DOLE, GTI must be sanctioned for such
failure and thereby required to indemnify each of the petitioners the sum of P20,000.00 which we find to be just and
reasonable under the circumstances of this case.

III. RE-EXAMINATION OF THE WENPHIL DOCTRINE:

FROM BAD TO WORSE

The minority of the Court has asked for a re-examination of Wenphil because as the majority correctly observed, "the
number of cases involving dismissals without the requisite notice to the employee although effected for just or
authorized causes suggests that the imposition of fine for violation of the notice requirement has not been effective in
deterring violations of the notice requirement."

We must immediately set Wenphil in its proper perspective as it is a very exceptional case. Its doctrine must be
limited to its distinct facts. Its facts therefore ought to be carefully examined again. In Wenphil, it was clearly
established that the employee had a violent temper, caused trouble during office hours and even defied his superiors
as they tried to pacify him. The employee was working for a fast food chain that served the public and where violence
has no place. These facts were established only in the proceedings before the Labor Arbiter after the employee filed
a complaint for illegal dismissal. There were no formal investigation proceedings before the employer as the
employment was dismissed without any notice by the employer. Given these facts, we ruled that the pre-dismissal
notice requirement was part of due process; nonetheless, we held that the employee was given due process as he
was heard by the Labor Arbiter; we found that the proceedings before the Labor Arbiter proved that the employer was
guilty of grave misconduct and insubordination; we concluded with the rule that it would be highly prejudicial to the
interest of the employer to reinstate the employee, but the employer must indemnify the employee the amount of
P1,000.00 for dismissing him without notice. We further held that "the measure of this award depends on the facts or
each case and the gravity of the omission committed by the employer."7

At the outset, I wish to emphasize that Wenphil itself held, and repeatedly held that "the failure of petitioner to give
private respondent the benefit of a hearing before he was dismissed, constitutes an infringement of his constitutional
right to due process of law and equal protection of the laws. The standards of due process of law in judicial as well as
administrative proceedings have long been established. In its bare minimum due process of law simply means giving
notice and opportunity to be heard before judgment is rendered." 8 The Court then satisfied itself with this bare
minimum when it held that the post dismissal hearing before the Labor Arbiter was enough compliance with demands
of due process and refused to reinstate an eminently undesirable employee. Heretofore, the Court was far from
satisfied with this bare minimum as it strictly imposed on an employer compliance with the requirement of pre-
dismissal notice, violation of which resulted in orders of reinstatement of the dismissed employee. This is the only
wrinkle wrought by Wenphil in our jurisprudence on dismissal. Nonetheless, it should be stressed that the Court still
punished Wenphil's violation of the pre-dismissal notice requirement as it was ordered to pay an indemnity of
P1,000.00 to the employee. The indemnity was based on the iterated and reiterated rule that "the dismissal of an
employee must be for just or authorized cause and after due process."9

Our ten (10) years experience with Wenphil is not a happy one. Unscrupulous employers have abused the Wenphil
ruling. They have dismissed without notice employees including those who are not as eminently undesirable as the
Wenphil employee. They dismissed employees without notice as a general rule when it should be the exception. The
purpose of the pre-dismissal notice requirement was entirely defeated by employers who were just too willing to pay
an indemnity for its violation. The result, as the majority concedes, is that the indemnity we imposed has not been
effective to prevent unjust dismissals employees. To be sure, this is even a supreme understatement. The ugly truth
is that Wenphil is the mother of many unjust and unauthorized dismissals of employees who are too weak to
challenge their powerful employees.

As the Wenphil indemnity doctrine has proved to be highly inimical to the interest of our employees, I humbly submit
a return to the pre-Wenphil rule where a reasonless violation of the pre-dismissal notice requirement makes the
dismissal of an employee illegal and results in his reinstatement. In fine, we should strike down as illegal the
dismissal of an employee even if it is for a justified end if it is done thru unjustified means for we cannot be disciples
of the Machiavellian doctrine of the end justifies the means. With due respect, the majority decision comes too near
this mischievous doctrine by giving emphasis on the end and not the means of dismissal of employees. What grates
is that the majority today espouses a doctrine more pernicious than Wenphil for now it announces that a violation of
the pre-dismissal notice requirement does not even concern due process. The reasons relied upon by the majority for
this new ruling against the job security of employees cannot inspire assent.

FIRST.  I would like to emphasize that one undesirable effect of Wenphil is to compel employees to seek relief against
illegal dismissals with the DOLE whereas before, a remedy can be sought before the employer. In shifting this
burden, an employee's uneven fight against his employer has become more uneven. Now, an illegally dismissed
employee often goes to the DOLE without an exact knowledge of the cause of his dismissal. As a matter of strategy,
some employers today dismiss employees without notice. They know that it is more advantageous for them to litigate
with an employee who has no knowledge of the cause of dismissal. The probability is that said employee will fail to
prove the illegality of his dismissal. All that he can prove is that he was dismissed without notice and the penalty for
the omission is a mere fine, a pittance.

The case at bar demonstrates how disastrous Wenphil has been to our helpless employees. In holding that the
petitioner failed to prove his cause of action, the majority held ". . . we have only the bare assertion of petitioner that,
in abolishing the security section, private respondent's real purpose was to avoid payment to the security checkers of
the wage increases provided in the collective bargaining agreement approved in 1990." The bare assertion of the
petitioner is understandable. The notice given to him spoke of a general ground — retrenchment. No details were
given about the employer's sudden retrenchment program. Indeed, the employee was dismissed on the day he
received the notice in violation of the 30-day requirement. He was given no time, no opportunity to ascertain and
verify the real cause of his dismissal. Thus, he filed with the DOLE a complaint for illegal dismissal with a hazy
knowledge of its real cause. Heretofore, it is the employer whom we blame and penalize if he does not notify his
employee of the cause of his dismissal. Today, the majority puts the blame on the employee for not knowing why he
was dismissed when he was not given any notice of dismissal. In truth, the suspicion of the petitioner in the case at
bar that he was dismissed to avoid payment of their wage increases is not without basis. The DOLE itself found that
petitioner has unpaid wages which were ordered to be paid by the employer. The majority itself affirmed this finding.
What hurts is that while the majority was strict with the petitioner-employee, it was not so with the employer
ISETANN. Immediately, it validated the finding of the NLRC that petitioner was dismissed due to the redundancy of
his position. This is inconsistent with the finding of the Labor Arbiter that the employer failed to prove retrenchment,
the ground it used to dismiss the petitioner. A perusal of the records will show that Ms. Cristina Ramos, Personnel
Administration Manager of the employer ISETANN testified on the cause of dismissal of the petitioner. She declared
that petitioner was retrenched due to the installation of a labor saving device. Allegedly, the labor saving device was
the hiring of an independent security agency, thus:10

xxx     xxx     xxx

Atty. Perdigon:

You said that your company decided to phase out the position of security checkers . . .

Ms. Ramos:

Yes Sir.

Q: And instead hired the services of a security agency?

A: Yes, sir.

xxx     xxx     xxx

Q: Did you not retrench the position of security checkers?

A: We installed a labor saving device.

Q: So you did not retrench?

A: No. sir.

Q: How about the position of Section Head of Security Department?

A: It was abolished in 1991.

xxx     xxx     xxx

Q: Are you aware of the retrenchment program of the company as stated in this letter?

A: Actually it's not a retrenchment program. It's an installation of a labor saving device.

Q: So you are telling this Court now that there was no retrenchment program?

A: It was actually an installation of a labor saving device (emphasis supplied).

xxx     xxx     xxx

Q: . . . What (is) this labor saving device that you are referring to?

A: The labor saving device is that the services of a security agency were contracted to handle the services
of the security checkers of our company.

Q: Are you sure of what labor saving means, Madam witness?

 A: Yes, sir.

Q: You said you installed a labor saving device, and you installed a security agency as a labor saving
device?

A: We hired the services of a security agency.

Q: So according to you . . . a security agency is a labor saving device?

Atty. Salonga:

Already answered, your Honor.

Obviously, Ms. Ramos could not even distinguish between retrenchment and redundancy. The Labor Arbiter thus
ruled that petitioner's dismissal was illegal. The NLRC, however, reversed. The majority affirmed the NLRC ruling that
ISETANN's phase out of its security employees is a legitimate business decision, one that is necessary to obtain
reasonable return from its investment. To use the phrase of the majority, this is a "bare assertion." Nothing in the
majority decision shows how the return of ISETANN's investment has been threatened to justify its so-called business
decision as legitimate.

SECOND. The majority holds that "the need is for a rule which, while recognizing the employee's right to notice
before he is dismissed or laid off, at the same time acknowledges the right of the employer to dismiss for any of the
just causes enumerated in Art. 282 or to terminate employment for any of the authorized causes mentioned in Arts.
283-284. If the Wenphil rule imposing a fine on an employer who is found to have dismissed an employee for cause
without prior notice is deemed ineffective in deterring employer violations of the notice requirement, the remedy is not
to declare the dismissal void if there are just or valid grounds for such dismissal or if the termination is for an
authorized cause. That would be to uphold the right of the employee but deny the right of the employer to dismiss for
cause. Rather, the remedy is to consider the dismissal or termination to be simply ineffectual for failure of the
employer to comply with the procedure for dismissal or termination.

With due respect, I find it most difficult to follow the logic of the majority. Before Wenphil, we protected employees
with the ruling that dismissals without prior notice are illegal and the illegally dismissed employee must be reinstated
with backwages. Wenphil diluted that rule when it held that due process is satisfied if the employee is given the
opportunity to be heard by the Labor Arbiter. It further held that an employee cannot be reinstated if it is established
in the hearing that his dismissal is for a just cause. The failure of the employer to give a pre-dismissal notice is only to
be penalized by payment of an indemnity. The dilution of the rule has been abused by unscrupulous employers who
then followed the "dismiss now, pay later" strategy. This evil practice of employers was what I expected the majority
to address in re-examining the Wenphil doctrine. At the very least, I thought that the majority would restore the
balance of rights between an employee and an employer by giving back the employee's mandatory right to notice
before dismissal. It is disquieting, however, that the majority re-arranged this balance of right by tilting it more in favor
of the employer's right to dismiss. Thus, instead of weakening a bit the right to dismiss of employers, the majority
further strengthens it by insisting that a dismissal without prior notice is merely "ineffectual" and not illegal.

The stubborn refusal of the majority to appreciate the importance of pre-dismissal notice is difficult to understand. It is
the linchpin of an employee's right against an illegal dismissal. The notice tells him the cause of his dismissal. It gives
him a better chance to contest his dismissal in an appropriate proceeding as laid down in the parties' collective
bargaining agreement or the rules of employment established by the employer, as the case may be. In addition, it
gives to both the employee and employer more cooling time to settle their differences amicably. In fine, the prior
notice requirement and the hearing before the employer give an employee a distinct, different and effective first level
of remedy to protect his job. In the event the employee is dismissed, he can still file a complaint with the DOLE with
better knowledge of the cause of his dismissal, with longer time to prepare his case, and with greater opportunity to
take care of the financial needs of his family  pendente lite. The majority has taken away from employees this
effective remedy. This is not to say that the pre-dismissal notice requirement equalizes the fight between an
employee and an employer for the fight will remain unequal. This notice requirement merely gives an employee a
fighting chance but that fighting chance is now gone.

It is equally puzzling why the majority believes that restoring the employee's right to pre-dismissal notice will negate
the right of an employer to dismiss for cause. The pre-Wenphil rule simply requires that before the right of the
employer to dismiss can be exercised, he must give prior notice to the employee of its cause. There is nothing
strange nor difficult about this requirement. It is no burden to an employer. He is bereft of reason not to give the
simple notice. If he fails to give notice, he can only curse himself. He forfeits his right to dismiss by failing to follow the
procedure for the exercise of his right. Employees in the public sector cannot be dismissed without prior notice. Equal
protection of law demands similar treatment of employees in the private sector.

THIRD. The case at bar specifically involves Article 283 of the Labor Code which lays down four (4) authorized
causes for termination of employment.11 These authorized causes are: (1) installation of labor-saving devices; (2)
redundancy; (3) retrenchment to prevent losses; and (4) closing or cessation of operation of the establishment or
undertaking unless the closing is for the purpose of circumventing the law. It also provides that prior to the dismissal
of an employee for an authorized cause, the employer must send two written notices at least one month before the
intended dismissal — one notice to the employee and another notice to the Department of Labor and Employment
(DOLE). We have ruled that the right to dismiss on authorized causes is not an absolute prerogative of an
employer.12 We explained that the notice to the DOLE is necessary to enable it to ascertain the truth of the cause of
termination.13 The DOLE is equipped with men and machines to determine whether the planned closure or cessation
of business or retrenchment or redundancy or installation of labor saving device is justified by economic facts. 14 For
this reason too, we have held that notice to the employee is required to enable him to contest the factual bases of the
management decision or good faith of the retrenchment or redundancy before the DOLE. 15 In addition, this notice
requirement gives an employee a little time to adjust to his joblessness.16

The majority insists that if an employee is laid off for an authorized cause under Article 283 in violation of the prior
notice requirement, his dismissal should not be considered void but only ineffectual. He shall not be reinstated but
paid separation pay and some backwages. I respectfully submit that an employee under Article 283 has a stronger
claim to the right to a pre-dismissal notice and hearing. To begin with, he is an innocent party for he has not violated
any term or condition of his employment. Moreover, an employee in an Article 283 situation may lose his job simply
because of his employer's desire for more profit. Thus, the installation of a labor saving device is an authorized cause
to terminate employment even if its non-installation need not necessarily result in an over-all loss to an employer
possessed by his possessions. In an Article 283 situation, it is easy to see that there is a greater need to scrutinize
the allegations of the employer that he is dismissing an employee for an authorized cause. The acts involved here are
unilateral acts of the employer. Their nature requires that they should be proved by the employer himself. The need
for a labor saving device, the reason for redundancy, the cause for retrenchment, the necessity for closing or
cessation of business are all within the knowledge of the employer and the employer alone. They involve a
constellation of economic facts and factors usually beyond the ken of knowledge of an ordinary employee. Thus, the
burden should be on the employer to establish and justify these authorized causes. Due to their complexity, the law
correctly directs that notice should be given to the DOLE for it is the DOLE more than the lowly employee that has the
expertise to validate the alleged cause in an appropriate hearing. In fine, the DOLE provides the equalizer to the
powers of the employer in an Article 283 situation. Without the equalizing influence of DOLE, the employee can be
abused by his employer.

Further, I venture the view that the employee's right to security of tenure guaranteed in our Constitution calls for a
pre-dismissal notice and hearing rather than a post facto dismissal hearing. The need for an employee to be heard
before he can be dismissed cannot be overemphasized. As aforestated, in the case at bar, petitioner was a regular
employee of ISETANN. He had the right to continue with his employment. The burden to establish that this right has
ceased is with ISETANN, as petitioner's employer. In fine, ISETANN must be the one to first show that the alleged
authorized cause for dismissing petitioner is real. And on this factual issue, petitioner must be heard. Before the
validity of the alleged authorized cause is established by ISETANN, the petitioner cannot be separated from
employment. This is the simple meaning of security of tenure. With due respect, the majority opinion will reduce this
right of our employees to a mere illusion. It will allow the employer to dismiss an employee for a cause that is yet to
be established. It tells the employee that if he wants to be heard, he can file a case with the labor arbiter, then the
NLRC, and then this Court. Thus, it unreasonably shifts the burden to the employee to prove that his dismissal is for
an unauthorized cause.

The pernicious effects of the majority stance are self-evident in the case at bar. For one, petitioner found himself
immediately jobless and without means to support his family. For another, petitioner was denied the right to rely on
the power of DOLE to inquire whether his dismissal was for a genuine authorized cause. This is a valuable right for all
too often, a lowly employee can only rely on DOLE's vast powers to check employer abuses on illegal dismissals.
Without DOLE, poor employees are preys to the claws of powerful employers. Last but not the least, it was the
petitioner who was forced to file a complaint for illegal dismissal. To a jobless employee, filing a complaint is an
unbearable burden due to its economic cost. He has to hire a lawyer and defray the other expenses of litigation while
already in a state of penury. At this point, the hapless employee is in a no win position to fight for his right. To use a
local adage, "aanhin pa ang damo kung patay na ang kabayo."
In the case at bar, the job of the petitioner could have been saved if DOLE was given notice of his dismissal. The
records show that petitioner worked in ISETANN as security checker for six (6) years. He served ISETANN faithfully
and well. Nonetheless, in a desire for more profits, and not because of losses, ISETANN contracted out the security
work of the company. There was no effort whatsoever on the part of ISETANN to accommodate petitioner in an
equivalent position. Yet there was the position of Safety and Security Supervisor where petitioner fitted like a perfect
T. Despite petitioner's long and loyal service, he was treated like an outsider, made to apply for the job, and given a
stringent examination which he failed. Petitioner was booted out and given no chance to contest his dismissal.
Neither was the DOLE given the chance to check whether the dismissal of petitioner was really for an authorized
cause. All these because ISETANN did not follow the notice and hearing requirement of due process.

FOURTH. The majority has inflicted a most serious cut on the job security of employees. The majority did nothing to
restore the pre-Wenphil right of employees but even expanded the right to dismiss of employer by holding that the
pre-dismissal notice requirement is not even a function of due process. This seismic shift in our jurisprudence ought
not to pass.

The key to the new majority ruling is that the "due process clause of the Constitution is a limitation on governmental
powers. It does not apply to the exercise of private power such as the termination of employment under the Labor
Code." The main reason alleged is that "only the State has authority to take the life, liberty, or property of the
individual. The purpose of the Due Process Clause is to ensure that the exercise of this power is consistent with
settled usage of civilized society."

There can be no room for disagreement on the proposition that the due process clause found in the Bill of Rights of
the Constitution is a limitation on governmental powers. Nor can there be any debate that acts of government
violative of due process are null and void. Thus, former Chief Justice Roberto Concepcion emphasized in Cuaycong
v.  Senbengco  17 that ". . . acts of Congress as well as those of the Executive, can deny due process only under pain
of nullity, and judicial proceedings suffering from the same flaw are subject to the same sanction, any statutory
provision to the contrary notwithstanding." With due respect to the majority, however, I part ways with the majority in
its new ruling that the due process requirement does not apply to the exercise of private power. This overly restrictive
majority opinion will sap the due process right of employees of its remaining utility. Indeed, the new majority opinion
limiting violations of due process to government action alone is a throwback to a regime of law long discarded by
more progressive countries. Today, private due process is a settled norm in administrative law. Per Schwartz, a
known authority in the field, viz:18

Private Due Process

As already stressed, procedural due process has proved of an increasingly encroaching nature.
Since Goldberg v. Kelly, the right to be heard has been extended to an ever-widening area, covering virtually
all aspects of agency action, including those previously excluded under the privilege concept. The expansion
of due process has not been limited to the traditional areas of administrative law. We saw how procedural
rights have expanded into the newer field of social welfare, as well as that of education. But due process
expansion has not been limited to these fields. The courts have extended procedural protections to cases
involving prisoners and parolees, as well as the use of established adjudicatory procedures. Important
Supreme Court decisions go further and invalidate prejudgment wage garnishments and seizures of
property under replevin statutes where no provision is made for notice and hearing. But the Court has not
gone so far as to lay down an inflexible rule that due process requires an adversary hearing when an
individual may be deprived of any possessory interest, however brief the dispossession and however slight
the monetary interest in the property. Due process is not violated where state law requires, as a precondition
to invoking the state's aid to sequester property of a defaulting debtor, that the creditor furnish adequate
security and make a specific showing of probable cause before a judge.

In addition, there has been an extension of procedural due process requirements from governmental to
private action. In Section 5.16 we saw that Goldberg v.  Kelly has been extended to the eviction of a tenant
from a public housing project. The courts have not limited the right to be heard to tenants who have
governmental agencies as landlords. Due process requirements also govern acts by "private" landlords
where there is sufficient governmental involvement in the rented premises. Such an involvement exists in
the case of housing aided by Federal Housing Administration financing and tax advantages. A tenant may
not be summarily evicted from a building operated by a "private" corporation where the corporation enjoyed
substantial tax exemption and had obtained an FHA-insured mortgage, with governmental subsidies to
reduce interest payments. The "private" corporation was so saturated with governmental incidents as to be
 limited in its practices by constitutional process. Hence, it could not terminate tenancies without notice and
an opportunity to be heard.

But we need nor rely on foreign jurisprudence to repudiate the new majority ruling that due process restricts
government alone and not private employers like ISETANN. This Court has always protected employees whenever
they are dismissed for an unjust cause by private employers. We have consistently held that before dismissing an
employee for a just cause, he must be given notice and hearing by his private employer. In Kingsize Manufacturing
Corporation vs. NLRC,19 this Court, thru Mr. Justice Mendoza, categorically ruled:

. . . (P)etitioners failure to give notice with warning to the private respondents before their services were
terminated puts in grave doubt petitioners' claim that dismissal was for a just cause. Section 2 Rule XIV of
the Rules implementing the Labor Code provides:

An employer who seeks to dismiss a worker shall furnish him a written notice stating the particular
acts or omission constituting the ground for dismissal. In case of abandonment of work, the notice
shall be served on the worker's last known address.

The notice required, . . ., actually consists of two parts to be separately served on the employee, to wit: (1)
notice to apprise the employee of the particular acts or omissions for which the dismissal is sought; and (2)
subsequent notice to inform him of the employer's decision to dismiss him.

This requirement is not a mere technicality but a requirement of due process to which every employee is
entitled to insure that the employer's prerogative to dismiss or lay off is not abused or exercised in an
arbitrary manner. This rule is clear and unequivocal . . . .20

In other words, we have long adopted in our decisions the doctrine of private due process. This is as it ought to be.
The 1987 Constitution guarantees the rights of workers, especially the right to security of tenure in a separate article
— section 3 of Article XIII entitled Social Justice and Human Rights. Thus, a 20-20 vision of the Constitution will show
that the more specific rights of labor are not in the Bill of Rights which is historically directed against government acts
alone. Needless to state, the constitutional rights of labor should be safeguarded against assaults from both
government and private parties. The majority should not reverse our settled rulings outlawing violations of due
process by employers in just causes cases.

To prop up its new ruling against our employees, the majority relates the evolution of our law on dismissal starting
from Article 302 of the Spanish Code of Commerce, to the New Civil Code of 1950, to R.A. No. 1052 (Termination
Pay Law), then to R.A. No. 1787. To complete the picture, let me add that on May 1, 1974, the Labor Code (PD 442)
was signed into law by former President Marcos. It took effect on May 1, 1974 or six months after its promulgation.
The right of the employer to terminate the employment was embodied in Articles 283, 21 284,22 and 285.23 Batas
Pambansa Blg. 130 which was enacted on August 21, 1981 amended Articles 283 and 284, which today are cited as
Arts. 282 and 283 of the Labor Code.24

On March 2, 1989, Republic Act No. 6715 was approved which amended, among others, Article 277 of the Labor
Code. Presently, Article 277 (b) reads:

Art. 277. Miscellaneous provisions. — (a) . . . .

(b) Subject to the constitutional right of workers to security of tenure and their right to be protected
against dismissal except for a just or authorized cause and without prejudice to the requirement of
notice under Article 283 of this Code, the employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement of the causes for termination and
shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and regulations promulgated
pursuant to the guidelines set by the Department of Labor and Employment. Any decision taken by
the employer shall be without prejudice to the right of the worker to contest the validity or legality of
his dismissal by filing a complaint with the regional branch of the National Labor Relations
Commission. The burden of proving that the termination was for a valid or authorized cause shall
rest on the employer. . . . .
Previous to the amendment, Article 277 (b) read:

Art. 277. Miscellaneous provisions. — (a) . . . .

(b) With or without a collective agreement, no employer may shut down his establishment or
dismiss or terminate the employment of employees with at least one year of service during the last
two years, whether such service is continuous or broken, without prior written authority issued in
accordance with the rules and regulations as the Secretary may promulgate.

Rule XIV, Book V of the 1997 Omnibus Rules Implementing the Labor Code provides:

Termination of Employment

Sec. 1. Security of tenure and due process. — No worker shall be dismissed except for a just or authorized
cause provided by law and after due process.

Sec. 2. Notice of dismissal. — Any employer who seeks to dismiss a worker shall furnish him a written
notice stating the particular acts or omissions constituting the grounds for his dismissal. . . .

xxx     xxx     xxx

Sec. 5. Answer and hearing. — The worker may answer the allegations stated against him in the notice of
dismissal within a reasonable period from receipt of such notice. The employer shall afford the worker ample
opportunity to be heard and to defend himself with the assistance of his representative, if he so desires.

These laws, rules and regulations should be related to our decisions interpreting them. Let me therefore emphasize
our rulings holding that the pre-dismissal notice requirement is part of due process. In Batangas Laguna Tayabas
Bus Co.  vs. Court of Appeals,25 which was decided under the provisions of RA No. 1052 as amended by RA No.
1787, this Court ruled that "the failure of the employer to give the [employee] the benefit of a hearing before he was
dismissed constitute an infringement on his constitutional right to due process of law and not to be denied the equal
protection of the laws. . . . Since the right of [an employee] to his labor is in itself a property and that the labor
agreement between him and [his employer] is the law between the parties, his summary and arbitrary dismissal
amounted to deprivation of his property without due process." Since then, we have consistently held that before
dismissing an employee for a just cause, he must be given notice and hearing by his private employer as a matter of
due process.

I respectfully submit that these rulings are more in accord with the need to protect the right of employees against
illegal dismissals. Indeed, our laws and our present Constitution are more protective of the rights and interests of
employees than their American counterpart. For one, to justify private due process, we need not look for the factors of
"sufficient governmental involvement" as American courts do. Article 1700 of our Civil Code explicitly provides:

Art. 1700. The relation between capital and labor are not merely contractual. They are so impressed with
public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to
the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects.

Nor do we have to strain on the distinction made by American courts between property and privilege and follow their
ruling that due process will not apply if what is affected is a mere privilege. It is our hoary ruling that labor is property
within the contemplation of the due process clause of the Constitution. Thus, in Philippine Movie Pictures Workers
Association vs. Premiere Productions, Inc.,26 private respondent-employer filed with the Court of Industrial Relations
(CIR) a petition seeking authority to lay off forty-four of its employees. On the date of the hearing of the petition, at the
request of the counsel of the private respondent, the judge of the CIR conducted an ocular inspection in the premises
of the employer. He interrogated fifteen laborers. On the basis of the ocular inspection, the judge concluded that the
petition for lay off was justified. We did not agree and we ruled that "the right of a person to his labor is deemed to he
property within the meaning of constitutional guarantees. That is his means of livelihood. He can not be deprived of
his labor or work without due process of law. . . . (T)here are certain cardinal primary rights which the Court of
Industrial Relations must respect in the trial of every labor case. One of them is the right to a hearing which includes
the right of the party interested to present his own case and to submit evidence in support thereof."
I wish also to stress that the 1999 Rules and Regulations implementing the Labor Code categorically characterize this
pre-dismissal notice requirement as a requirement of due process. Rule XXIII provides:

Sec. 2. Standards of due process: requirements of notice. — In all cases of termination of employment, the
following standards of due process shall be substantially observed.

I. For termination of employment based on just causes as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination, and
giving to said employee reasonable opportunity within which to explain his side;

(b) A hearing or conference during which the employee concerned, with the assistance of counsel if
the employee so desires, is given opportunity to respond to the charge, present his evidence or
rebut the evidence presented against him; and

(c) A written notice of termination served on the employee indicating that upon due consideration of
all the circumstance, grounds have been established to justify his termination.

In case of termination, the foregoing notices shall be served on the employee's last known address.

II. For termination of employment as based on authorized causes defined in Article 283 of the Code, the
requirements of due process shall be deemed complied with upon service of a written notice to the
employee and the appropriate Regional Office of the Department at least thirty (30) days before the
effectivity of the termination, specifying the ground or grounds for termination.

The new ruling of the majority is not in consonance with this Rule XXIII.

If we are really zealous of protecting the rights of labor as called for by the Constitution, we should guard against
every violation of their rights regardless of whether the government or a private party is the culprit. Section 3 of Article
XIII of the Constitution requires the State to give full protection to labor. We cannot be faithful to this duty if we give no
protection to labor when the violator of its rights happens to be private parties like private employers. A private person
does not have a better right than the government to violate an employee's right to due process. To be sure, violation
of the particular right of employees to security of tenure comes almost always from their private employers. To
suggest that we take mere geriatric steps when it comes to protecting the rights of labor from infringement by private
parties is farthest from the intent of the Constitution. We trivialize the right of the employee if we adopt the rule
allowing the employer to dismiss an employee without any prior hearing and say let him be heard later on. To a
dismissed employee that remedy is too little and too late. The new majority ruling is doubly to be regretted because it
comes at a time when deregulation and privatization are buzzwords in the world being globalized. In such a setting,
the new gods will not be governments but non-governmental corporations. The greater need of the day therefore is
protection from illegal dismissals sans due process by these non-governmental corporations.

The majority also holds that the "third reason why the notice requirement under Art. 283 is not a requirement of due
process is that the employer cannot really be expected to be entirely an impartial judge of his own cause. This is also
the case in termination of employment for a just cause under Art. 282." Again, with due respect, I beg to disagree. In
an Article 283 situation, dismissal due to an authorized cause, the employer is not called upon to act as an impartial
judge. The employer is given the duty to serve a written notice on the worker and the DOLE at least one month
before the intended date of lay-off. It is the DOLE, an impartial agency that will judge whether or not the employee is
being laid off for an authorized caused.27 It is not the employer who will adjudge whether the alleged authorized cause
for dismissing the employee is fact or fiction. On the other hand, in an Article 282 situation, dismissal for a just cause,
it is also incorrect to hold that an employer cannot be an impartial judge. Today, the procedure on discipline and
dismissal of employees is usually defined in the parties' collective bargaining agreement or in its absence, on the
rules and regulations made by the employer himself. This procedure is carefully designed to be bias free for it is to
the interest of both the employee and the employer that only a guilty employee is disciplined or dismissed. Hence,
where the charge against an employee is serious, it is standard practice to include in the investigating committee an
employee representative to assure the integrity of the process. In addition, it is usual practice to give the aggrieved
employee an appellate body to review an unfavorable decision. Stated otherwise, the investigators are mandated to
act impartially for to do otherwise can bring havoc  less to the employee but more to the employer. For one, if the
integrity of the grievance procedure becomes suspect, the employees may shun it and instead resort to coercive
measures like picketing and strikes that can financially bleed employers. For another, a wrong, especially a biased
judgment can always be challenged in the DOLE and the courts and can result in awards of huge damages against
the company. Indeed, the majority ruling that an employer cannot act as an impartial judge has no empirical evidence
to support itself. Statistics in the DOLE will prove the many cases won by employees before the grievance
committees manned by impartial judges of the company.

Next, the majority holds that "the requirement to hear an employee before he is dismissed should be considered
simply as an application of the Justinian precept, embodied in the Civil Code, to act with justice, give everyone his
due, and observe honesty and good faith toward one's fellowmen." It then rules that violation of this norm will render
the employer liable for damages but will not render his act of dismissal void. Again, I cannot join the majority stance.
The faultline of this ruling lies in the refusal to recognize that employer-employee relationship is governed by special
labor laws and not by the Civil Code. The majority has disregarded the precept that relations between capital and
labor are impressed with public interest. For this reason, we have the Labor Code that specially regulates the
relationship between employer-employee including dismissals of employees. Thus, Article 279 of the Labor Code
specifically provides that "in cases of regular employment, the employer shall not terminate the services of an
employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work
shall be entitled to instatement without loss of seniority rights and other privileges and to his full backwages, inclusive
of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement." This provision of the Labor Code clearly gives the
remedies that an unjustly dismissed employee deserves. It is not the Civil Code that is the source of his remedies.

The majority also holds that lack of notice in an Article 283 situation merely makes an employee dismissal
"ineffectual" but not illegal. Again, the ruling is sought to be justified by analogy and our attention is called to Article
1592, in relation to Article 1191 of the Civil Code. It is contended that "under these provisions, while the power to
rescind is implied in reciprocal obligations, nonetheless, in cases involving the sale of immovable property, the vendor
cannot rescind the contract even though the vendee defaults in the payment of the price, except by bringing an action
in court or giving notice of rescission by means of a notarial demand." The analogy of the majority cannot be allowed
both in law and in logic. The legal relationship of an employer to his employee is not similar to that of a vendor and a
vendee. An employee suffers from a distinct disadvantage in his relationship with an employer, hence, the
Constitution and our laws give him extra protection. In contrast, a vendor and a vendee in a sale of immovable
property are at economic par with each other. To consider an employer-employee relationship as similar to a sale of
commodity is an archaic abomination. An employer-employee relationship involves the common good and labor
cannot be treated as a mere commodity. As well-stated by former Governor General Leonard Wood in his inaugural
message before the 6th Philippine Legislature on October 27, 1922, "it is opportune that we strive to impress upon all
the people that labor is neither a chattel nor a commodity, but human and must be dealt with from the standpoint of
human interests."

Next, the majority holds that under the Labor Code, only the absence of a just cause for the termination of
employment can make the dismissal of an employee illegal. Quoting Article 279 which provides:

Security of Tenure. — In cases of regular employment, the employer shall not terminate the services of an
employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed
from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from
the time his compensation was withheld from him up to the time of his actual reinstatement.

it is then rationalized that "to hold that the employer's failure to give notice before dismissing an employee . . . results
in the nullity of the dismissal would, in effect, be to amend Article 279 by adding another ground, for considering a
dismissal illegal." With due respect, the majority has misread Article 279. To start with, the article is entitled "Security
of Tenure" and therefore protects an employee against dismissal not only for an unjust cause but also for an
unauthorized cause. Thus, the phrase "unjustly dismissed" refers to employees who are dismissed without just cause
and to employees who are laid off without any authorized cause. As heretofore shown, we have interpreted
dismissals without prior notice as illegal for violating the right to due process of the employee. These rulings form part
of the law of the land and Congress was aware of them when it enacted the Labor Code and when its implementing
rules and regulations were promulgated especially the rule ordering employers to follow due process when dismissing
employees. Needless to state, it is incorrect for the majority to urge that we are in effect amending Article 279.

In further explication of its ruling, the majority contends "what is more, it would ignore the fact that under Art. 285, if it
is the employee who fails to give a written notice to the employer that he is leaving the service of the latter, at least
one month in advance, his failure to comply with the legal requirement does not result in making his resignation void
but only in making him liable for damages." Article 285(a) states: "An employee may terminate without just cause the
employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The
employer upon whom no such notice was served may hold the employee liable for damages."

In effect, the majority view is that its new ruling puts at par both the employer and the employee — under Article 285,
the failure of an employee to pre-notify in writing his employer that he is terminating their relationship does not make
his walk-out void; under its new ruling, the failure of an employer to pre-notify an employee before his dismissal does
not also render the dismissal void. By this new ruling, the majority in a short stroke has rewritten the law on dismissal
and tampered its pro-employee philosophy. Undoubtedly, Article 285 favors the employee as it does not consider
void his act of terminating his employment relationship before giving the required notice. But this favor given to an
employee just like the other favors in the Labor Code and the Constitution are precisely designed to level the playing
field between the employer and the employee. It cannot be gainsaid that employees are the special subject of
solicitous laws because they have been and they continue to be exploited by unscrupulous employers. Their
exploitation has resulted in labor warfare that has broken industrial peace and slowed down economic progress. In
the exercise of their wisdom, the founding fathers of our 1935, 1973 and 1987 Constitutions as well as the members
our past and present Congresses, have decided to give more legal protection and better legal treatment to our
employees in their relationship with their employer. Expressive of this policy is President Magsaysay's call that "he
who has less in life should have more in law." I respectfully submit that the majority cannot revise our laws nor shun
the social justice thrust of our Constitution in the guise of interpretation especially when its result is to favor employers
and disfavor employees. The majority talks of high nobility but the highest nobility it to stoop down to reach the poor.

IV. NO UNJUST RESULTS OF CONSIDERING DISMISSALS WITHOUT PRIOR NOTICE AS ILLEGAL

The majority further justifies its new ruling by holding:

The refusal to look beyond the validity of the initial action taken by the employer to terminate employment
either for an authorized or just cause can result in an injustice to the employer. For not having been given
notice and hearing before dismissing an employee, who is otherwise guilty of, say, theft, or even of an
attempt against the life of the employer, an employer will be forced to keep in his employ such guilty
employee. This is unjust.

It is true the Constitution regards labor as "a primary social economic force." But so does it declare that it
"recognizes the indispensable role of the private sector, encourages private enterprise, and provides
incentives to needed investment." The Constitution bids the State to "afford full protection to labor." But it is
equally true that "the law, in protecting the rights of the laborer, authorizes neither oppression nor self-
destruction of the employer." And it is oppression to compel the employer to continue in employment one
who is guilty or to force the employer to remain in operation when it is not economically in his interest to do
so.

With due respect, I cannot understand this total turn around of the majority on the issue of the unjustness of lack of
pre-dismissal notice to an employee. Heretofore, we have always considered this lack of notice as unjust to the
employee. Even under Article 302 of the Spanish Code of Commerce of 1882 as related by the majority, an employer
who opts to dismiss an employee without any notice has to pay a mesada equivalent to his salary for one month
because of its unjustness. This policy was modified by our legislators in favor of a more liberal treatment of labor as
our country came under the influence of the United States whose major labor laws became the matrix of our own
laws like R.A. 875, otherwise known as the Industrial Peace Act. In accord with these laws, and as aforediscussed,
we laid down the case law that dismissals without prior notice offend due process. This is the case law when the
Labor Code was enacted on May 1, 1974 and until now despite its amendments. The 1935 and the 1973
Constitutions did not change this case law. So with the 1987 Constitution which even strengthened the rights of
employees, especially their right to security of tenure. Mr. Justice Laurel in his usual inimitable prose expressed this
shift in social policy in favor of employees as follows:

It should be observed at the outset that our Constitution was adopted in the midst of surging unrest and
dissatisfaction resulting from economic and social distress which was threatening the stability of
governments the world over. Alive to the social and economic forces at work, the framers of our Constitution
boldly met the problems and difficulties which faced them and endeavored to crystallize, with more or less
fidelity, the political, social and economic propositions of their age, and this they did, with the consciousness
that the political and philosophical aphorism of their generation will, in the language of a great jurist, "be
doubted by the next and perhaps entirely discarded by the third." (Chief Justice Winslow in Gorgnis v. Falk
Co., 147 Wis., 327; 133 N. W., 209). Embodying the spirit of the present epoch, general provisions were
inserted in the Constitution which are intended to bring about the needed social and economic equilibrium
 between component elements of society through the application of what may be termed as the  justitia
communis advocated by Grotius and Leibnitz many years ago to be secured through the counter-balancing
of economic and social forces and employers or landlords, and employees or tenants, respectively; and by
prescribing penalties for the violation of the orders" and later, Commonwealth Act No. 213, entitled "An Act
to define and regulate legitimate labor organizations."28

This ingrained social philosophy favoring employees has now been weakened by the new ruling of the majority. For
while this Court has always considered lack of pre-dismissal notice as unjust to employees, the new ruling of the
majority now declares it is unjust to employers as if employers are the ones exploited by employees. In truth, there is
nothing unjust to employers by requiring them to give notice to their employees before denying them their jobs. There
is nothing unjust to the duty to give notice for the duty is a reasonable duty. If the duty is reasonable, then it is also
reasonable to demand its compliance before the right to dismiss on the part of an employer can be exercised. If it is
reasonable for an employer to comply with the duty, then it can never be unjust if non-compliance therewith is
penalized by denying said employer his right to dismiss. In fine, if the employer's right to dismiss an employee is
forfeited for his failure to comply with this simple, reasonable duty to pre-notify his employee, he has nothing to blame
but himself. If the employer is estopped from litigating the issue of whether or not he is dismissing his employee for a
just or an authorized cause, he brought the consequence on to himself. The new ruling of the majority, however,
inexplicably considers this consequence as unjust to the employer and it merely winks at his failure to give notice.

V. A LAST WORD

The new ruling of the majority erodes the sanctity of the most important right of an employee, his constitutional right
to security of tenure. This right will never be respected by the employer if we merely honor the right with a price tag.
The policy of "dismiss now and pay later" favors monied employers and is a mockery of the right of employees to
social justice. There is no way to justify this pro-employer stance when the 1987 Constitution is undeniably more pro-
employee than our previous fundamental laws. Section 18 of Article II (State Policies) provides that "the State affirms
labor as a primary social economic force. It shall protect the rights of workers and promote their welfare." Section 1,
Article XIII (Social Justice and Human Rights) calls for the reduction of economic inequalities. Section 3, Article XIII
(Labor) directs the State to accord full protection to labor and to guaranty security of tenure. These are constitutional
polestars and not mere works of cosmetology. Our odes to the poor will be meaningless mouthfuls if we cannot
protect the employee's right to due process against the power of the peso of employers.

To an employee, a job is everything. Its loss involves terrible repercussions — stoppage of the schooling of children,
ejectment from leased premises, hunger to the family, a life without any safety net. Indeed, to many employees,
dismissal is their lethal injection. Mere payment of money by way of separation pay and backwages will not secure
food on the mouths of employees who do not even have the right to choose what they will chew.

I vote to grant the petition.

VITUG, J., separate (concurring and dissenting) opinion;

The lawful severance by an employer of an employer-employee relationship would require a valid cause. There are,
under the Labor Code, two groups of valid causes, and these are the just causes under Article 282 1 and the
authorized causes under Article 2832 and Article 284.3

An employee whose employment is terminated for a just cause is not entitled to the payment of separation
benefits.4 Separation pay would be due, however, when the lay-off is on account of an authorized cause. The amount
of separation pay would depend on the ground for the termination of employment. A lay-off due to the installation of a
labor saving device, redundancy (Article 283) or disease (Article 284), entitles the worker to a separation pay
equivalent to "one (1) month pay or at least one (1) month pay for every year of service, whichever is higher." When
the termination of employment is due to retrenchment to prevent losses, or to closure or cessation of operations of an
establishment or undertaking not due to serious business losses or financial reverses, the separation pay is only an
equivalent of "one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher."
In the above instances, a fraction of at least six (6) months is considered as one (1) whole year.
Due process of law, in its broad concept, is a principle in our legal system that mandates due protection to the basic
rights, inherent or accorded, of every person against harm or transgression without an intrinsically just and valid law,
as well as an opportunity to be heard before an impartial tribunal, that can warrant such an impairment. Due process
guarantees against arbitrariness and bears on both substance and procedure. Substantive due process concerns
itself with the law, its essence, and its concomitant efficacy; procedural due process focuses on the rules that are
established in order to ensure meaningful adjudications appurtenant thereto.

In this jurisdiction, the right to due process is constitutional and statutory.

Due process in the context of a termination of employment, particularly, would be two-fold, i.e., substantive due
process which is complied with when the action of the employer is predicated on a just cause or an authorized cause,
and procedural due process which is satisfied when the employee has the opportunity to contest the existence of the
ground invoked by the employer in terminating the contract of employment and to be heard thereon. I find it difficult to
ascribe either a want of wisdom or a lack of legal basis to the early pronouncements of this Court that sanction the
termination of employment when a just or an authorized cause to warrant the termination is clearly extant.
Regrettably, the Court in some of those pronouncements has used, less than guarded in my view, the term "due
process" when referring to the notices prescribed in the Labor Code 5 and its implementing rules6 that could,
thereby, albeit unintendedly and without meaning to, confuse the latter with the notice requirement in adjudicatory
proceedings. It is not seldom when the law puts up various conditions in the juridical relations of parties; it would not
be accurate to consider, I believe, an infraction thereof to ipso-facto raise a problem of due process. The mere failure
of notice of the dismissal or lay-off does not foreclose the right of an employee from disputing the validity, in general,
of the termination of his employment, or the veracity, in particular, of the cause that has been invoked in order to
justify that termination. In assailing the dismissal or lay-off, an employee is entitled to be heard and to be given the
corresponding due notice of the proceedings. It would be when this right is withheld without cogent reasons that,
indeed, it can rightly be claimed that the fundamental demands of procedural due process have been unduly
discarded.

I do appreciate the fact that the prescribed notices can have consequential benefits to an employee who is dismissed
or laid off, as the case may be; its non-observance by an employer, therefore, can verily entitle the employee to an
award of damage but, to repeat, not to the extent of rendering outrightly illegal that dismissal or lay-off predicated on
valid grounds. I would consider the indemnification to the employee not a penalty or a fine against the employer, the
levy of either of which would require an appropriate legislative enactment; rather, I take the grant of indemnity as
justifiable as an award of nominal damages in accordance with the provisions of Articles 2221-2223 of the Civil
Code, viz:

Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered by him.

Art. 2222. The court may award nominal damages in every obligation arising from any source enumerated in
article 1157, or in every case where any property right has been invaded.

Art. 2223. The adjudication of nominal damages shall preclude further contest upon the right involved and all
accessory questions, as between the parties to the suit, or their respective heirs and assigns.

There is no fixed formula for determining the precise amount of nominal damages. In fixing the amount of nominal
damages to be awarded, the circumstances of each case should thus be taken into account, such as, to exemplify,
the —

(a) length of service or employment of the dismissed employee;

(b) his salary or compensation at the time termination of employment vis-a-vis the capability of the employer
to pay;

(c) question of whether the employer has deliberately violated the requirements for termination of
employment or has attempted to comply, at least substantially, therewith; and/or

(d) reasons for the termination of employment.

I might stress the rule that the award of nominal damages is not for the purpose of indemnification for a loss but for
the recognition and vindication of a right. The degree of recovery therefor can depend, on the one hand, on the
constitution of the right, and, upon the other hand, on the extent and manner by which that right is ignored to the
prejudice of the holder of that right.

In fine7 —

A. A just cause or an authorized cause and a written notice of dismissal or lay-off, as the case may be, are
required concurrently but not really equipollent in their consequence, in terminating an employer-employee
relationship.

B. Where there is neither just cause nor authorized cause, the reinstatement of the employee and the
payment of back salaries would be proper and should be decreed. If the dismissal or lay-off is attended by
bad faith or if the employer acted in wanton or oppressive manner, moral and exemplary damages might
also be a warded. In this respect, the Civil Code provides:

Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court
should find that, under the circumstances, such damages are just due. The same rule applies to
breaches of contract where the defendant acted fraudulently or in bad faith.

Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages if the
defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner (Civil Code).

Separation pay can substitute for reinstatement if such reinstatement is not feasible, such as in case of a
clearly strained employer-employee relationship (limited to managerial positions and contracts of
employment predicated on trust and confidence) or when the work or position formerly held by the dismissed
employee plainly has since ceased to be available.

C. Where there is just cause or an authorized cause for the dismissal or lay-off but the required written
notices therefor have not been properly observed by an employer, it would neither be light and justifiable nor
likely intended by law to order either the reinstatement of the dismissed or laid-off employee or the payment
of back salaries to him simply for the lack of such notices if, and so long as, the employee is not deprived of
an opportunity to contest that dismissal or lay-off and to accordingly be heard thereon. In the termination of
employment for an authorized cause (this cause being attributable to the employer), the laid-off employee is
statutorily entitled to separation pay, unlike a dismissal for a just cause (a cause attributable to an employee)
where no separation pay is due. In either case, if an employer fails to comply with the requirements of notice
in terminating the services of the employee, the employer must be made to pay, as so hereinabove
expressed, corresponding damages to the employee.

WHEREFORE, I vote to hold (a) that the lay-off in the case at bar is due to redundancy and that, accordingly, the
separation pay to petitioner should be increased to one month, instead of one-half month, pay for every year of
service, and (b) that petitioner is entitled to his unpaid wages, proportionate 13th-month pay, and an indemnity of
P10,000.00 in keeping with the nature and purpose of, as well as the rationale behind, the grant of nominal damages.

PANGANIBAN, J., separate opinion;

In the case before us, the Court is unanimous in at least two findings: (1) petitioner's dismissal was due to an
authorized cause, redundancy; and (2) petitioner was notified of his dismissal only on the very day his employment
was terminated. The contentious issue arising out of these two findings is as follows: What is the legal effect and the
corresponding sanction for the failure of the employer to give the employee and the Department of Labor and
Employment (DOLE) the 30-day notice of termination required under Article 283 of the Labor Code?

During the last ten (10) years, the Court has answered the foregoing question by ruling that the dismissal should be
upheld although the employee should be given "indemnity or damages" ranging from P1,000 to P10,000 depending
on the circumstances.
The present ponencia of Mr. Justice Mendoza holds that "the termination of his employment should be considered
ineffectual and the [employee] should be paid back wages" from the time of his dismissal until the Court finds that the
dismissal was for a just cause.

Reexamination of the "Indemnity Only" Rule

I am grateful that the Court has decided to reexamine our ten-year doctrine on this question and has at least, in the
process, increased the monetary award that should go to the dismissed employee — from a nominal sum in the
concept "indemnity or damages" to "full back wages." Shortly after my assumption of office on October 10, 1995, I
already questioned this practice of granting "indemnity only" to employees who were dismissed for cause but without
due process.1 I formally registered reservations on this rule in my ponencia in MGG Marine Services v. NLRC 2 and
gave it full discussion in my Dissents in Better Buildings v. NLRC3 and in Del Val v. NLRC.4

Without in any way diminishing my appreciation of this reexamination and of the more financially-generous treatment
the Court has accorded labor, I write to take issue with the legal basis of my esteemed colleague, Mr. Justice
Mendoza, in arriving at his legal conclusion that "the employer's failure to comply with the notice requirement does
not constitute a denial of due process but a mere failure to observe a procedure for the termination of employment
which makes the termination of employment merely ineffectual." In short, he believes that (1) the 30-day notice
requirement finds basis only in the Labor Code, and (2) the sanction for its violation is only "full back wages."

With due respect, I submit the following counter-arguments:

(1) The notice requirement finds basis not only in the Labor Code but, more important, in the due process
clause of the Constitution.

(2) Consequently, when the employee is dismissed without due process, the legal effect is an illegal
dismissal and the appropriate sanction is full back wages plus reinstatement, not merely full back wages. It
is jurisprudentially settled, as I will show presently, that when procedural due process is violated, the
proceedings — in this case, the dismissal — will be voided, and the parties will have to be returned to
their status quo ante; that is, the employee will have to be given back his old job and paid all benefits as if he
were never dismissed.

(3) In any event, contrary to Mr. Justice Mendoza's premise, even the Labor Code expressly grants the
dismissed employee not only the right to be notified but also the right to be heard.

In short, when an employee is dismissed without notice and hearing, the effect is an illegal dismissal and the
appropriate reliefs are reinstatement and full back wages. In ruling that the dismissal should be upheld, the Court
majority has virtually rendered nugatory the employee's right to due process as mandated by law and the
Constitution. It implicitly allows the employer to simply ignore such right and to just pay the employee. While it
increases the payment to "full back wages," it doctrinally denigrates his right to due process to a mere statutory right
to notice.

Let me explain the foregoing by starting with a short background of our jurisprudence on the right to due process.

Without Due Process, the Proceedings Are Illegal

In the past, this Court has untiringly reiterated that there are two essential requisites for an employer's valid
termination of an employee's services: (1) a just 5 or authorized6 cause and (2) due process.7 During the last ten years,
the Court has been quite firm in this doctrinal concept, but it has been less than consistent in declaring the illegality of
a dismissal when due process has not been observed. This is particularly noticeable in the relief granted. Where
there has been no just or authorized cause, the employee is awarded reinstatement or separation pay, and back
wages.8 If only the second requisite (due process) has not been fulfilled, the employee, as earlier stated, is granted
indemnity or damages amounting to a measly P1,000 up to P10,000.9

I respectfully submit that illegal dismissal results not only from the absence of a legal cause (enumerated in Arts. 282
to 284 of the Labor Code), but likewise from the failure to observe due process. Indeed, many are the cases, labor or
otherwise, in which acts violative of due process are unequivocally voided or declared illegal by the Supreme Court.
In Pepsi-Cola Bottling Co. v. NLRC,10 the Court categorically ruled that the failure of management to comply with the
requirements of due process made its judgment of dismissal "void and non-existent."

This Court in People v. Bocar  11 emphatically made the following pronouncement, which has been reiterated in
several cases:12

The cardinal precept is that where there is a violation of basis constitutional rights, courts are ousted of their
jurisdiction. Thus the violation of the State's right to due process raises a serious jurisdictional issue
(Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be
glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a
decision rendered in disregarded of the right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370,
[May 25, 1973] 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any
judgment or decision rendered notwithstanding such violation may be regarded as a "lawless thing, which
can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head" (Aducayen vs.
Flores, supra).

In the earlier case Bacus v. Ople,13 this Court also nullified the then labor minister's clearance to terminate the
employment of company workers who had supposedly staged an illegal strike. The reason for this ruling was the
denial of sufficient opportunity for them to present their evidence and prove their case. The Court explained:14

A mere finding of the illegality of a strike should not be automatically followed by a wholesale dismissal of
the strikers from their employment. What is more, the finding of the illegality of the strike by respondent
Minister of Labor and Employment is predicated on the evidence ascertained through an irregular procedure
conducted under the semblance of summary methods and speedy disposition of labor disputes involving
striking employees.

While it is true that administrative agencies exercising quasi-judicial functions are free from the rigidities of
procedure, it is equally well-settled in this jurisdiction that avoidance of such technicalities of law or
procedure in ascertaining objectively the facts in each case should not, however, cause a denial of due
process. The relative freedom of the labor arbiter from the rigidities of procedure cannot be invoked to evade
what was clearly emphasized in the landmark case of Ang Tibay v. Court of Industrial Relations that all
administrative bodies cannot ignore or disregard the fundamental and essential requirements of due
process.

In the said case, the respondent company was ordered to reinstate the dismissed workers, pending a hearing "giving
them the opportunity to be heard and present their evidence."

In Philippine National Bank v. Apalisok,15 Primitivo Virtudazo, an employee of PNB, was served a Memorandum
stating the finding against him of a prima facie case for dishonesty and violation of bank rules and regulations. He
submitted his Answer denying the charges and explaining his defenses.

Later, two personnel examiners of the bank conducted a fact-finding investigation. They stressed to him that a formal
investigation would follow, in which he could confront and examine the witnesses for the bank, as well as present his
own. What followed, however, was a Memorandum notifying him that he had been found guilty of the charges and
that he was being dismissed. After several futile attempts to secure a copy of the Decision rendered against him, he
instituted against PNB a Complaint for illegal dismissal and prayed for reinstatement and damages.

The trial court held that Virtudazo had been deprived of his rights to be formally investigated and to cross-examine
the witnesses. This Court sustained the trial court, stating resolutely: "The proceedings having been conducted
without according to Virtudazo the "cardinal primary rights of due process" guaranteed to every party in an
administrative or quasi-judicial proceeding, said proceedings must be pronounced null and void."16

Also in Fabella v. Court of Appeals,17 this Court declared the dismissal of the schoolteachers illegal, because the
administrative body that heard the charges against them had not afforded them their right to procedural due process.
The proceedings were declared void, and the orders for their dismissal set aside. We unqualifiedly reinstated the
schoolteachers, to whom we awarded all monetary benefits that had accrued to them during the period of their
unjustified suspension or dismissal.
In People v. San Diego,18 People v. Sola,19 People v. Dactrdao,20 People v. Calo Jr.21 and People v. Burgos,22 this
Court similarly voided the trial court's grant of bail to the accused upon a finding that the prosecution had been
deprived of procedural due process.

In People v. Sevilleno,23 the Court noted that the trial judge "hardly satisfied the requisite searching inquiry" due the
accused when he pleaded guilty to the capital offense he had been charged with. We thus concluded that "the
accused was not properly accorded his fundamental right to be informed of the precise nature of the accusation
leveled against him." Because of the nonobservance of "the fundamental requirements of fairness and due process,"
the appealed Decision was annulled and set aside, and the case was remanded for the proper arraignment and trial
of the accused.

Recently, the Court vacated its earlier Decision 24 in People v. Parazo25 upon realizing that the accused — "a deaf-
mute, a mental retardate, whose mental age [was] only seven (7) years and nine (9) months, and with low IQ of 60
only" — had not been ably assisted by a sign language expert during his arraignment and trial. Citing People
v. Crisologo,26 we ruled that the accused had been deprived of "a full and fair trial and a reasonable opportunity to
defend himself." He had in effect been denied his fundamental right to due process of law. Hence, we set aside the
trial proceedings and granted the accused a re-arraignment and a retrial.

Of late, we also set aside a Comelec Resolution disallowing the use by a candidate of a certain nickname for the
purpose of her election candidacy. The Resolution was issued pursuant to a letter-petition which was passed upon by
the Comelec without affording the candidate the opportunity to explain her side and to counter the allegations in said
letter-petition. In invalidating the said Resolution, we again underscored the necessity of the observance of the twin
requirements of notice and hearing before any decision can be validly rendered in a case.27

Clearly deducible from our extant jurisprudence is that the denial of a person's fundamental right to due process
amounts to the illegality of the proceedings against him. Consequently, he is brought back to his status quo ante, not
merely awarded nominal damages or indemnity.

Our labor force deserves no less. Indeed, the State recognizes it as its primary social economic force, 28 to which it is
constitutionally mandated to afford full protection.29 Yet, refusing to declare the illegality of dismissals without due
process, we have continued to impose upon the erring employer the simplistic penalty of paying indemnity only.
Hence, I submit that it is time for us to denounce these dismissals as null and void and to grant our workers these
proper reliefs: (1) the declaration that the termination or dismissal is illegal and unconstitutional and (2) the
reinstatement of the employee plus full back wages. The present ruling of the Court is manifestly inconsistent with
existing prudence which holds that proceedings held without notice and hearing are null and void, since they amount
to a violation of due process, and therefore bring back the parties to the status quo ante.

Exception: When Due Process Is Impractical and Futile

I am fully aware that in a long line of cases starting with Wenphil v. NLRC,30 the Court has held: where there is just
cause for the dismissal of an employee but the employer fails to follow the requirements of procedural due process,
the former is not entitled to back wages, reinstatement (or separation pay in case reinstatement is no longer feasible)
or other benefits. Instead, the employee is granted an indemnity (or penalty or damages) ranging from P1,000 31 to as
much as P10,000,32 depending on the circumstances of the case and the gravity of the employer's omission. Since
then, Wenphil has perfunctorily been applied in most subsequent cases 33 involving a violation of due process
(although just cause has been duly proven), without regard for the peculiar factual milieu of each case. Indemnity or
damages has become an easy substitute for due process.

Be it remembered, however, that the facts in Wenphil clearly showed the impracticality and the futility of observing the
procedure laid down by law and by the Constitution for terminating employment. The employee involved therein
appeared to have exhibited a violent temper and caused trouble during office hours. In an altercation with a co-
employee, he "slapped [the latter's] cap, stepped on his foot and picked up the ice scooper and brandished it against
[him]." When summoned by the assistant manager, the employee "shouted and uttered profane words" instead of
giving an explanation. He was caught virtually in flagrante delicto in the presence of many people. Under the
circumstances action was necessary to preserve order and discipline, as well as to safeguard the customers'
confidence in the employer's business — a fastfood chain catering to the general public where courtesy is a prized
virtue.
However, in most of the succeeding cases, including the present one before us in which the petitioner was dismissed
on the very day he was served notice, there were ample opportunities for the employers to observe the requisites of
due process. There were no exigencies that called for immediate response. And yet, Wenphil was instantly invoked
and due process brushed aside.

I believe that the price that the Court has set for the infringement of the fundamental right to due process is too
insignificant, too niggardly, and sometimes even too late. I believe that imposing a stiffer sanction is the only way to
emphasize to employers the extreme importance of the right to due process in our democratic system. Such right is
too sacred to be taken for granted or glossed over in a cavalier fashion. To hold otherwise, as by simply imposing an
indemnity or even "full back wages," is to allow the rich and powerful to virtually purchase and to thereby stifle a
constitutional right granted to the poor and marginalized.

It may be asked: If the employee is guilty anyway, what difference would it make if he is fired without due process?
By the same token, it may be asked: If in the end, after due hearing, a criminal offender is found guilty anyway, what
difference would it make if he is simply penalized immediately without the trouble and the expense of trial? The
absurdity of this argument is too apparent to deserve further discourse.34

Worker's Right to Notice Is Constitutional, Not Merely Statutory

According to the ponencia of Mr. Justice Mendoza, the "violation of the notice requirement cannot be considered a
denial of due process resulting in the nullity of the employee's dismissal or lay-off." He argues that the due process
clause of the Constitution may be used against the government only. Since the Labor Code does not accord
employees the right to a hearing, ergo, he concludes, they do not have the right to due process.

I disagree. True, as pointed out by Mr. Justice Mendoza, traditional doctrine holds that constitutional rights may be
invoked only against the State. This is because in the past, only the State was in a position to violate these rights,
including the due process clause. However, with the advent of liberalization, deregulation and privatization, the State
tended to cede some of its powers to the "market forces." Hence, corporate behemoths and even individuals may
now be sources of abuses and threats to human rights and liberties. I believe, therefore, that such traditional doctrine
should be modified to enable the judiciary to cope with these new paradigms and to continue protecting the people
from new forms of abuses.34 -a

Indeed the employee is entitled to due process not because of the Labor code, but because of the Constitution.
Elementary is the doctrine that constitutional provisions are deemed written into every statute, contract or
undertaking. Worth noting is that "[o]ne's employment, profession, trade or calling is a property right within the
protection of the constitutional guaranty of due process of law."35

In a long line of cases involving judicial, quasi-judicial and administrative proceedings, some of which I summarized
earlier, the Court has held that the twin requirements of notice and hearing (or, at the very least, an opportunity to be
heard) constitute the essential elements of due process. In labor proceedings, both are the conditio sine qua non for
a dismissal to be validly effected. 36 The perceptive Justice Irene Cortes has aptly stated: "One cannot go without the
other, for otherwise the termination would, in the eyes of the law, be illegal."37

Even the Labor Code Grants the Right to a Hearing

Besides, it is really inaccurate to say that the Labor Code grants "notice alone" to employees being dismissed due to
an authorized cause. Article 277 (b)38 of the said Code explicitly provides that the termination of employment by the
employer is "subject to the constitutional right of workers to security of tenure[;] . . . without prejudice to the
requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement of the causes for termination and shall afford the
latter ample opportunity to be heard . . . ." Significantly, the provision requires the employer "to afford [the employee]
ample opportunity to be heard" when the termination is due to a "just and authorized cause." I submit that this
provision on "ample opportunity to be heard" applies to dismissals under Articles 282, 283 and 284 of the Labor
Code.

In addition, to say that the termination is "simply ineffectual" for failure to comply with the 30-day written notice and, at
the same time, to conclude that it has "legal effect" appears to be contradictory. Ineffectual means "having no legal
force."39 If a dismissal has no legal force or effect, the consequence should be the reinstatement of the dismissed
employee and the grant of full back wages thereto, as provided by law — not the latter only. Limiting the
consequence merely to the payment of full back wages has no legal or statutory basis. No provision in the Labor
Code or any other law authorizes such limitation of sanction, which Mr. Justice Mendoza advocates.

The majority contends that it is not fair to reinstate the employee, because the employer should not be forces to
accommodate an unwanted worker. I believe however that it is not the Court that forces the employer to rehire the
worker. By violating the latter's constitutional right to due process, the former brings this sanction upon itself. Is it
unfair to imprison a criminal? No! By violating the law, one brings the penal sanction upon oneself. There is nothing
unfair or unusual about this inevitable chain of cause and effect, of crime and punishment, of violation and sanction.

Due Process Begins With Each of Us

To repeat, due process begins with the employer, not with the labor tribunals. An objective reading of the Bill of
Rights clearly shows that the due process protection is not limited to government action alone. The Constitution does
not say that the right cannot be claimed against private individuals and entities. Thus, in PNB v.  Apalisok, which I
cited earlier, this Court voided the proceedings conducted by petitioner bank because of its failure to observe
Apalisok's right to due process.

Truly, justice is dispensed not just by the courts and quasi-judicial bodies like public respondent here. The
administration of justice begins with each of us, in our everyday dealings with one another and, as in this case, in the
employers' affording their employees the right to be heard. If we, as a people and as individuals, cannot or will not
deign to act with justice and render unto everyone his or her due in little, everyday things, can we honestly hope and
seriously expect to do so when monumental, life-or-death issues are at stake? Unless each one is committed to a
faithful observance of day-to-day fundamental rights, our ideal of a just society can never be approximated, not to say
attained.

In the final analysis, what is involved here is not simply the amount of monetary award, whether insignificant or
substantial; whether termed indemnity, penalty or "full back wages." Neither is it merely a matter of respect for
workers' rights or adequate protection of labor. The bottom line is really the constitutionally granted right to due
process. And due process is the very essence of justice itself. Where the rule of law is the bedrock of our free society,
justice is its very lifeblood. Denial of due process is thus no less than a denial of justice itself.

In Addition to Reinstatement and Back Wages, Damages May Be Awarded

One last point. Justice Vitug argues in his Separate Opinion that the nonobservance of the prescribed notices "can
verily entitle the employee to an award of damages but . . . not to the extent of rendering outrightly illegal that
dismissal or lay-off . . . ." I, of course, disagree with him insofar as he denies the illegality of the dismissal, because
as I already explained, a termination without due process is unconstitutional and illegal. But I do agree that, where the
employee proves the presence of facts showing liability for damages (moral, exemplary, etc.) as provided under the
Civil Code, the employee could be entitled to such award in addition to reinstatement and back wages. For instance,
where the illegal dismissal has caused the employee "physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury" due to the bad faith of
the employer, an award for moral damages would be proper, in addition to reinstatement and back wages.

Summary

To conclude, I believe that even if there may be a just or an authorized cause for termination but due process is
absent, the dismissal proceedings must be declared null and void. The dismissal should still be branded as illegal.
Consequently, the employee must be reinstated and given full back wages.

On the other hand, there is an exception. The employer can adequately prove that under the peculiar circumstances
of the case, there was no opportunity to comply with due process requirements; or doing so would have been
impractical or gravely adverse to the employer, as when the employee is caught in flagrante delicto. Under any of
these circumstances, the dismissal will not be illegal and no award may properly be granted. Nevertheless, as a
measure of compassion, the employee may be given a nominal sum depending on the circumstances, pursuant to
Article 2221 of the Civil Code.

Depending on the facts of each case, damages as provided under applicable articles of the Civil Code may
additionally be awarded.
WHEREFORE, I vote to GRANT the petition. Ruben Serrano should be REINSTATED and PAID FULL BACK
WAGES from date of termination until actual reinstatement, plus all benefits he would have received as if he were
never dismissed.

7. G.R. No. 162994             September 17, 2004

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON, petitioners,

vs.
GLAXO WELLCOME PHILIPPINES, INC., Respondent.

RESOLUTION

TINGA, J.:

Confronting the Court in this petition is a novel question, with constitutional overtones, involving the validity of the
policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor company.

This is a Petition for Review on Certiorari assailing the Decision1 dated May 19, 2003 and the Resolution dated
March 26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434.2

Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc. (Glaxo) as medical
representative on October 24, 1995, after Tecson had undergone training and orientation.

Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agrees to study and
abide by existing company rules; to disclose to management any existing or future relationship by consanguinity or
affinity with co-employees or employees of competing drug companies and should management find that such
relationship poses a possible conflict of interest, to resign from the company.

The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform management of
any existing or future relationship by consanguinity or affinity with co-employees or employees of competing drug
companies. If management perceives a conflict of interest or a potential conflict between such relationship and the
employee’s employment with the company, the management and the employee will explore the possibility of a
"transfer to another department in a non-counterchecking position" or preparation for employment outside the
company after six months.

Tecson was initially assigned to market Glaxo’s products in the Camarines Sur-Camarines Norte sales area.

Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of Astra
Pharmaceuticals3 (Astra), a competitor of Glaxo. Bettsy was Astra’s Branch Coordinator in Albay. She supervised the
district managers and medical representatives of her company and prepared marketing strategies for Astra in that
area.

Even before they got married, Tecson received several reminders from his District Manager regarding the conflict of
interest which his relationship with Bettsy might engender. Still, love prevailed, and Tecson married Bettsy in
September 1998.
In January 1999, Tecson’s superiors informed him that his marriage to Bettsy gave rise to a conflict of interest.
Tecson’s superiors reminded him that he and Bettsy should decide which one of them would resign from their jobs,
although they told him that they wanted to retain him as much as possible because he was performing his job well.

Tecson requested for time to comply with the company policy against entering into a relationship with an employee of
a competitor company. He explained that Astra, Bettsy’s employer, was planning to merge with Zeneca, another drug
company; and Bettsy was planning to avail of the redundancy package to be offered by Astra. With Bettsy’s
separation from her company, the potential conflict of interest would be eliminated. At the same time, they would be
able to avail of the attractive redundancy package from Astra.

In August 1999, Tecson again requested for more time resolve the problem. In September 1999, Tecson applied for a
transfer in Glaxo’s milk division, thinking that since Astra did not have a milk division, the potential conflict of interest
would be eliminated. His application was denied in view of Glaxo’s "least-movement-possible" policy.

In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur sales area. Tecson
asked Glaxo to reconsider its decision, but his request was denied.

Tecson sought Glaxo’s reconsideration regarding his transfer and brought the matter to Glaxo’s Grievance
Committee. Glaxo, however, remained firm in its decision and gave Tescon until February 7, 2000 to comply with the
transfer order. Tecson defied the transfer order and continued acting as medical representative in the Camarines Sur-
Camarines Norte sales area.

During the pendency of the grievance proceedings, Tecson was paid his salary, but was not issued samples of
products which were competing with similar products manufactured by Astra. He was also not included in product
conferences regarding such products.

Because the parties failed to resolve the issue at the grievance machinery level, they submitted the matter for
voluntary arbitration. Glaxo offered Tecson a separation pay of one-half (½) month pay for every year of service, or a
total of ₱50,000.00 but he declined the offer. On November 15, 2000, the National Conciliation and Mediation Board
(NCMB) rendered its Decision declaring as valid Glaxo’s policy on relationships between its employees and persons
employed with competitor companies, and affirming Glaxo’s right to transfer Tecson to another sales territory.

Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the NCMB Decision.

On May 19, 2003, the Court of Appeals promulgated its Decision denying the Petition for Review on the ground that
the NCMB did not err in rendering its Decision. The appellate court held that Glaxo’s policy prohibiting its employees
from having personal relationships with employees of competitor companies is a valid exercise of its management
prerogatives.4

Tecson filed a Motion for Reconsideration of the appellate court’s Decision, but the motion was denied by the
appellate court in its Resolution dated March 26, 2004.5

Petitioners filed the instant petition, arguing therein that (i) the Court of Appeals erred in affirming the NCMB’s finding
that the Glaxo’s policy prohibiting its employees from marrying an employee of a competitor company is valid; and (ii)
the Court of Appeals also erred in not finding that Tecson was constructively dismissed when he was transferred to a
new sales territory, and deprived of the opportunity to attend products seminars and training sessions.6

Petitioners contend that Glaxo’s policy against employees marrying employees of competitor companies violates the
equal protection clause of the Constitution because it creates invalid distinctions among employees on account only
of marriage. They claim that the policy restricts the employees’ right to marry.7

They also argue that Tecson was constructively dismissed as shown by the following circumstances: (1) he was
transferred from the Camarines Sur-Camarines Norte sales area to the Butuan-Surigao-Agusan sales area, (2) he
suffered a diminution in pay, (3) he was excluded from attending seminars and training sessions for medical
representatives, and (4) he was prohibited from promoting respondent’s products which were competing with Astra’s
products.8
In its Comment on the petition, Glaxo argues that the company policy prohibiting its employees from having a
relationship with and/or marrying an employee of a competitor company is a valid exercise of its management
prerogatives and does not violate the equal protection clause; and that Tecson’s reassignment from the Camarines
Norte-Camarines Sur sales area to the Butuan City-Surigao City and Agusan del Sur sales area does not amount to
constructive dismissal.9

Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical products, it has a genuine
interest in ensuring that its employees avoid any activity, relationship or interest that may conflict with their
responsibilities to the company. Thus, it expects its employees to avoid having personal or family interests in any
competitor company which may influence their actions and decisions and consequently deprive Glaxo of legitimate
profits. The policy is also aimed at preventing a competitor company from gaining access to its secrets, procedures
and policies.10

It likewise asserts that the policy does not prohibit marriage per se but only proscribes existing or future relationships
with employees of competitor companies, and is therefore not violative of the equal protection clause. It maintains
that considering the nature of its business, the prohibition is based on valid grounds.11

According to Glaxo, Tecson’s marriage to Bettsy, an employee of Astra, posed a real and potential conflict of interest.
Astra’s products were in direct competition with 67% of the products sold by Glaxo. Hence, Glaxo’s enforcement of
the foregoing policy in Tecson’s case was a valid exercise of its management prerogatives. 12 In any case, Tecson
was given several months to remedy the situation, and was even encouraged not to resign but to ask his wife to
resign form Astra instead.13

Glaxo also points out that Tecson can no longer question the assailed company policy because when he signed his
contract of employment, he was aware that such policy was stipulated therein. In said contract, he also agreed to
resign from respondent if the management finds that his relationship with an employee of a competitor company
would be detrimental to the interests of Glaxo.14

Glaxo likewise insists that Tecson’s reassignment to another sales area and his exclusion from seminars regarding
respondent’s new products did not amount to constructive dismissal.

It claims that in view of Tecson’s refusal to resign, he was relocated from the Camarines Sur-Camarines Norte sales
area to the Butuan City-Surigao City and Agusan del Sur sales area. Glaxo asserts that in effecting the reassignment,
it also considered the welfare of Tecson’s family. Since Tecson’s hometown was in Agusan del Sur and his wife
traces her roots to Butuan City, Glaxo assumed that his transfer from the Bicol region to the Butuan City sales area
would be favorable to him and his family as he would be relocating to a familiar territory and minimizing his travel
expenses.15

In addition, Glaxo avers that Tecson’s exclusion from the seminar concerning the new anti-asthma drug was due to
the fact that said product was in direct competition with a drug which was soon to be sold by Astra, and hence, would
pose a potential conflict of interest for him. Lastly, the delay in Tecson’s receipt of his sales paraphernalia was due to
the mix-up created by his refusal to transfer to the Butuan City sales area (his paraphernalia was delivered to his new
sales area instead of Naga City because the supplier thought he already transferred to Butuan).16

The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred in ruling that Glaxo’s
policy against its employees marrying employees from competitor companies is valid, and in not holding that said
policy violates the equal protection clause of the Constitution; (2) Whether Tecson was constructively dismissed.

The Court finds no merit in the petition.

The stipulation in Tecson’s contract of employment with Glaxo being questioned by petitioners provides:

10. You agree to disclose to management any existing or future relationship you may have, either by
consanguinity or affinity with co-employees or employees of competing drug companies. Should it pose a
possible conflict of interest in management discretion, you agree to resign voluntarily from the Company as
a matter of Company policy.
 …17

The same contract also stipulates that Tescon agrees to abide by the existing company rules of Glaxo, and to study
and become acquainted with such policies.18 In this regard, the Employee Handbook of Glaxo expressly informs its
employees of its rules regarding conflict of interest:

1. Conflict of Interest

Employees should avoid any activity, investment relationship, or interest that may run counter to the
responsibilities which they owe Glaxo Wellcome.

Specifically, this means that employees are expected:

a. To avoid having personal or family interest, financial or otherwise, in any competitor supplier or
other businesses which may consciously or unconsciously influence their actions or decisions and
thus deprive Glaxo Wellcome of legitimate profit.

b. To refrain from using their position in Glaxo Wellcome or knowledge of Company plans to
advance their outside personal interests, that of their relatives, friends and other businesses.

c. To avoid outside employment or other interests for income which would impair their effective job
performance.

d. To consult with Management on such activities or relationships that may lead to conflict of
interest.

1.1. Employee Relationships

Employees with existing or future relationships either by consanguinity or affinity with co-employees of
competing drug companies are expected to disclose such relationship to the Management. If management
perceives a conflict or potential conflict of interest, every effort shall be made, together by management and
the employee, to arrive at a solution within six (6) months, either by transfer to another department in a non-
counter checking position, or by career preparation toward outside employment after Glaxo Wellcome.
Employees must be prepared for possible resignation within six (6) months, if no other solution is feasible.19

No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxo’s policy prohibiting an employee
from having a relationship with an employee of a competitor company is a valid exercise of management prerogative.

Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential
programs and information from competitors, especially so that it and Astra are rival companies in the highly
competitive pharmaceutical industry.

The prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s
employees is reasonable under the circumstances because relationships of that nature might compromise the
interests of the company. In laying down the assailed company policy, Glaxo only aims to protect its interests against
the possibility that a competitor company will gain access to its secrets and procedures.

That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution
recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on
investments and to expansion and growth.20 Indeed, while our laws endeavor to give life to the constitutional policy on
social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the
workers. The law also recognizes that management has rights which are also entitled to respect and enforcement in
the interest of fair play.21

As held in a Georgia, U.S.A case,22 it is a legitimate business practice to guard business confidentiality and protect a
competitive position by even-handedly disqualifying from jobs male and female applicants or employees who are
married to a competitor. Consequently, the court ruled than an employer that discharged an employee who was
married to an employee of an active competitor did not violate Title VII of the Civil Rights Act of 1964. 23 The Court
pointed out that the policy was applied to men and women equally, and noted that the employer’s business was
highly competitive and that gaining inside information would constitute a competitive advantage.

The challenged company policy does not violate the equal protection clause of the Constitution as petitioners
erroneously suggest. It is a settled principle that the commands of the equal protection clause are addressed only to
the state or those acting under color of its authority. 24 Corollarily, it has been held in a long array of U.S. Supreme
Court decisions that the equal protection clause erects no shield against merely private conduct, however,
discriminatory or wrongful.25 The only exception occurs when the state29 in any of its manifestations or actions has
been found to have become entwined or involved in the wrongful private conduct. 27 Obviously, however, the
exception is not present in this case. Significantly, the company actually enforced the policy after repeated requests
to the employee to comply with the policy. Indeed, the application of the policy was made in an impartial and even-
handed manner, with due regard for the lot of the employee.

In any event, from the wordings of the contractual provision and the policy in its employee handbook, it is clear that
Glaxo does not impose an absolute prohibition against relationships between its employees and those of competitor
companies. Its employees are free to cultivate relationships with and marry persons of their own choosing. What the
company merely seeks to avoid is a conflict of interest between the employee and the company that may arise out of
such relationships. As succinctly explained by the appellate court, thus:

The policy being questioned is not a policy against marriage. An employee of the company remains free to
marry anyone of his or her choosing. The policy is not aimed at restricting a personal prerogative that
belongs only to the individual. However, an employee’s personal decision does not detract the employer
from exercising management prerogatives to ensure maximum profit and business success. . .28

The Court of Appeals also correctly noted that the assailed company policy which forms part of respondent’s
Employee Code of Conduct and of its contracts with its employees, such as that signed by Tescon, was made known
to him prior to his employment. Tecson, therefore, was aware of that restriction when he signed his employment
contract and when he entered into a relationship with Bettsy. Since Tecson knowingly and voluntarily entered into a
contract of employment with Glaxo, the stipulations therein have the force of law between them and, thus, should be
complied with in good faith."29 He is therefore estopped from questioning said policy.

The Court finds no merit in petitioners’ contention that Tescon was constructively dismissed when he was transferred
from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City-Agusan del Sur sales area, and
when he was excluded from attending the company’s seminar on new products which were directly competing with
similar products manufactured by Astra. Constructive dismissal is defined as a quitting, an involuntary resignation
resorted to when continued employment becomes impossible, unreasonable, or unlikely; when there is a demotion in
rank or diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable
to the employee.30 None of these conditions are present in the instant case. The record does not show that Tescon
was demoted or unduly discriminated upon by reason of such transfer. As found by the appellate court, Glaxo
properly exercised its management prerogative in reassigning Tecson to the Butuan City sales area:

. . . In this case, petitioner’s transfer to another place of assignment was merely in keeping with the policy of
the company in avoidance of conflict of interest, and thus valid…Note that [Tecson’s] wife holds a sensitive
supervisory position as Branch Coordinator in her employer-company which requires her to work in close
coordination with District Managers and Medical Representatives. Her duties include monitoring sales of
Astra products, conducting sales drives, establishing and furthering relationship with customers, collection,
monitoring and managing Astra’s inventory…she therefore takes an active participation in the market war
characterized as it is by stiff competition among pharmaceutical companies. Moreover, and this is
significant, petitioner’s sales territory covers Camarines Sur and Camarines Norte while his wife is
supervising a branch of her employer in Albay. The proximity of their areas of responsibility, all in the same
Bicol Region, renders the conflict of interest not only possible, but actual, as learning by one spouse of the
other’s market strategies in the region would be inevitable. [Management’s] appreciation of a conflict of
interest is therefore not merely illusory and wanting in factual basis…31

In Abbott Laboratories (Phils.), Inc. v. National Labor Relations Commission, 32 which involved a complaint filed by a
medical representative against his employer drug company for illegal dismissal for allegedly terminating his
employment when he refused to accept his reassignment to a new area, the Court upheld the right of the drug
company to transfer or reassign its employee in accordance with its operational demands and requirements. The
ruling of the Court therein, quoted hereunder, also finds application in the instant case:
 By the very nature of his employment, a drug salesman or medical representative is expected to travel. He
should anticipate reassignment according to the demands of their business. It would be a poor drug
corporation which cannot even assign its representatives or detail men to new markets calling for opening or
expansion or to areas where the need for pushing its products is great. More so if such reassignments are
part of the employment contract.33

As noted earlier, the challenged policy has been implemented by Glaxo impartially and disinterestedly for a long
period of time. In the case at bar, the record shows that Glaxo gave Tecson several chances to eliminate the conflict
of interest brought about by his relationship with Bettsy. When their relationship was still in its initial stage, Tecson’s
supervisors at Glaxo constantly reminded him about its effects on his employment with the company and on the
company’s interests. After Tecson married Bettsy, Glaxo gave him time to resolve the conflict by either resigning from
the company or asking his wife to resign from Astra. Glaxo even expressed its desire to retain Tecson in its employ
because of his satisfactory performance and suggested that he ask Bettsy to resign from her company instead. Glaxo
likewise acceded to his repeated requests for more time to resolve the conflict of interest. When the problem could
not be resolved after several years of waiting, Glaxo was constrained to reassign Tecson to a sales area different
from that handled by his wife for Astra. Notably, the Court did not terminate Tecson from employment but only
reassigned him to another area where his home province, Agusan del Sur, was included. In effecting Tecson’s
transfer, Glaxo even considered the welfare of Tecson’s family. Clearly, the foregoing dispels any suspicion of
unfairness and bad faith on the part of Glaxo.34

WHEREFORE, the Petition is DENIED for lack of merit. Costs against petitioners.

SO ORDERED.
 8. G.R. No. 168081              October 17, 2008

ARMANDO G. YRASUEGUI, petitioners,
vs.
PHILIPPINE AIRLINES, INC., respondents.

DECISION

REYES, R.T., J.:

THIS case portrays the peculiar story of an international flight steward who was dismissed because of his failure to
adhere to the weight standards of the airline company.

He is now before this Court via a petition for review on certiorari claiming that he was illegally dismissed. To buttress
his stance, he argues that (1) his dismissal does not fall under 282(e) of the Labor Code; (2) continuing adherence to
the weight standards of the company is not a bona fide occupational qualification; and (3) he was discriminated
against because other overweight employees were promoted instead of being disciplined.

After a meticulous consideration of all arguments pro and con, We uphold the legality of dismissal. Separation pay,
however, should be awarded in favor of the employee as an act of social justice or based on equity. This is so
because his dismissal is not for serious misconduct. Neither is it reflective of his moral character.

The Facts

Petitioner Armando G. Yrasuegui was a former international flight steward of Philippine Airlines, Inc. (PAL). He stands
five feet and eight inches (5’8") with a large body frame. The proper weight for a man of his height and body structure
is from 147 to 166 pounds, the ideal weight being 166 pounds, as mandated by the Cabin and Crew Administration
Manual1 of PAL.

The weight problem of petitioner dates back to 1984. Back then, PAL advised him to go on an extended vacation
leave from December 29, 1984 to March 4, 1985 to address his weight concerns. Apparently, petitioner failed to meet
the company’s weight standards, prompting another leave without pay from March 5, 1985 to November 1985.

After meeting the required weight, petitioner was allowed to return to work. But petitioner’s weight problem recurred.
He again went on leave without pay from October 17, 1988 to February 1989.

On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his ideal weight. In line with company policy, he
was removed from flight duty effective May 6, 1989 to July 3, 1989. He was formally requested to trim down to his
ideal weight and report for weight checks on several dates. He was also told that he may avail of the services of the
company physician should he wish to do so. He was advised that his case will be evaluated on July 3, 1989.2

On February 25, 1989, petitioner underwent weight check. It was discovered that he gained, instead of losing, weight.
He was overweight at 215 pounds, which is 49 pounds beyond the limit. Consequently, his off-duty status was
retained.

On October 17, 1989, PAL Line Administrator Gloria Dizon personally visited petitioner at his residence to check on
the progress of his effort to lose weight. Petitioner weighed 217 pounds, gaining 2 pounds from his previous weight.
After the visit, petitioner made a commitment 3 to reduce weight in a letter addressed to Cabin Crew Group Manager
Augusto Barrios. The letter, in full, reads:

Dear Sir:
I would like to guaranty my commitment towards a weight loss from 217 pounds to 200 pounds from today until 31
Dec. 1989.

From thereon, I promise to continue reducing at a reasonable percentage until such time that my ideal weight is
achieved.

Likewise, I promise to personally report to your office at the designated time schedule you will set for my weight
check.

Respectfully Yours,

F/S Armando Yrasuegui4

Despite the lapse of a ninety-day period given him to reach his ideal weight, petitioner remained overweight. On
January 3, 1990, he was informed of the PAL decision for him to remain grounded until such time that he
satisfactorily complies with the weight standards. Again, he was directed to report every two weeks for weight checks.

Petitioner failed to report for weight checks. Despite that, he was given one more month to comply with the weight
requirement. As usual, he was asked to report for weight check on different dates. He was reminded that his
grounding would continue pending satisfactory compliance with the weight standards.5

Again, petitioner failed to report for weight checks, although he was seen submitting his passport for processing at
the PAL Staff Service Division.

On April 17, 1990, petitioner was formally warned that a repeated refusal to report for weight check would be dealt
with accordingly. He was given another set of weight check dates. 6 Again, petitioner ignored the directive and did not
report for weight checks. On June 26, 1990, petitioner was required to explain his refusal to undergo weight checks.7

When petitioner tipped the scale on July 30, 1990, he weighed at 212 pounds. Clearly, he was still way over his ideal
weight of 166 pounds.

From then on, nothing was heard from petitioner until he followed up his case requesting for leniency on the latter
part of 1992. He weighed at 219 pounds on August 20, 1992 and 205 pounds on November 5, 1992.

On November 13, 1992, PAL finally served petitioner a Notice of Administrative Charge for violation of company
standards on weight requirements. He was given ten (10) days from receipt of the charge within which to file his
answer and submit controverting evidence.8

On December 7, 1992, petitioner submitted his Answer.9 Notably, he did not deny being overweight. What he
claimed, instead, is that his violation, if any, had already been condoned by PAL since "no action has been taken by
the company" regarding his case "since 1988." He also claimed that PAL discriminated against him because "the
company has not been fair in treating the cabin crew members who are similarly situated."

On December 8, 1992, a clarificatory hearing was held where petitioner manifested that he was undergoing a weight
reduction program to lose at least two (2) pounds per week so as to attain his ideal weight.10

On June 15, 1993, petitioner was formally informed by PAL that due to his inability to attain his ideal weight, "and
considering the utmost leniency" extended to him "which spanned a period covering a total of almost five (5) years,"
his services were considered terminated "effective immediately."11

His motion for reconsideration having been denied,12 petitioner filed a complaint for illegal dismissal against PAL.

Labor Arbiter, NLRC and CA Dispositions

On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled 13 that petitioner was illegally dismissed. The
dispositive part of the Arbiter ruling runs as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered, declaring the complainant’s dismissal illegal,
and ordering the respondent to reinstate him to his former position or substantially equivalent one, and to pay him:

a. Backwages of Php10,500.00 per month from his dismissal on June 15, 1993 until reinstated, which for purposes of
appeal is hereby set from June 15, 1993 up to August 15, 1998 at ₱651,000.00;

b. Attorney’s fees of five percent (5%) of the total award.

SO ORDERED.14

The Labor Arbiter held that the weight standards of PAL are reasonable in view of the nature of the job of
petitioner.15 However, the weight standards need not be complied with under pain of dismissal since his weight did
not hamper the performance of his duties.16 Assuming that it did, petitioner could be transferred to other positions
where his weight would not be a negative factor.17 Notably, other overweight employees, i.e., Mr. Palacios, Mr. Cui,
and Mr. Barrios, were promoted instead of being disciplined.18

Both parties appealed to the National Labor Relations Commission (NLRC).19

On October 8, 1999, the Labor Arbiter issued a writ of execution directing the reinstatement of petitioner without loss
of seniority rights and other benefits.20

On February 1, 2000, the Labor Arbiter denied21 the Motion to Quash Writ of Execution22 of PAL.

On March 6, 2000, PAL appealed the denial of its motion to quash to the NLRC.23

On June 23, 2000, the NLRC rendered judgment24 in the following tenor:

WHEREFORE, premises considered[,] the Decision of the Arbiter dated 18 November 1998 as modified by our
findings herein, is hereby AFFIRMED and that part of the dispositive portion of said decision concerning
complainant’s entitlement to backwages shall be deemed to refer to complainant’s entitlement to his full
backwages, inclusive of allowances and to his other benefits or their monetary equivalent instead of simply
backwages, from date of dismissal until his actual reinstatement or finality hereof. Respondent is enjoined to
manifests (sic) its choice of the form of the reinstatement of complainant, whether physical or through payroll within
ten (10) days from notice failing which, the same shall be deemed as complainant’s reinstatement through payroll and
execution in case of non-payment shall accordingly be issued by the Arbiter. Both appeals of respondent thus,
are DISMISSED for utter lack of merit.25

According to the NLRC, "obesity, or the tendency to gain weight uncontrollably regardless of the amount of food
intake, is a disease in itself."26 As a consequence, there can be no intentional defiance or serious misconduct by
petitioner to the lawful order of PAL for him to lose weight.27

Like the Labor Arbiter, the NLRC found the weight standards of PAL to be reasonable. However, it found as
unnecessary the Labor Arbiter holding that petitioner was not remiss in the performance of his duties as flight steward
despite being overweight. According to the NLRC, the Labor Arbiter should have limited himself to the issue of
whether the failure of petitioner to attain his ideal weight constituted willful defiance of the weight standards of PAL.28

PAL moved for reconsideration to no avail. 29 Thus, PAL elevated the matter to the Court of Appeals (CA) via a
petition for certiorari  under Rule 65 of the 1997 Rules of Civil Procedure.30

By Decision dated August 31, 2004, the CA reversed31 the NLRC:

WHEREFORE, premises considered, we hereby GRANT the petition. The assailed NLRC decision is declared NULL
and VOID and is hereby SET ASIDE. The private respondent’s complaint is hereby DISMISSED. No costs.

SO ORDERED.32
The CA opined that there was grave abuse of discretion on the part of the NLRC because it "looked at wrong and
irrelevant considerations"33 in evaluating the evidence of the parties. Contrary to the NLRC ruling, the weight
standards of PAL are meant to be a continuing qualification for an employee’s position.34 The failure to adhere to the
weight standards is an analogous cause for the dismissal of an employee under Article 282(e) of the Labor Code in
relation to Article 282(a). It is not willful disobedience as the NLRC seemed to suggest. 35 Said the CA, "the element of
willfulness that the NLRC decision cites is an irrelevant consideration in arriving at a conclusion on whether the
dismissal is legally proper."36 In other words, "the relevant question to ask is not one of willfulness but one of
reasonableness of the standard and whether or not the employee qualifies or continues to qualify under this
standard."37

Just like the Labor Arbiter and the NLRC, the CA held that the weight standards of PAL are reasonable. 38 Thus,
petitioner was legally dismissed because he repeatedly failed to meet the prescribed weight standards. 39 It is obvious
that the issue of discrimination was only invoked by petitioner for purposes of escaping the result of his dismissal for
being overweight.40

On May 10, 2005, the CA denied petitioner’s motion for reconsideration. 41 Elaborating on its earlier ruling, the CA
held that the weight standards of PAL are a bona fide occupational qualification which, in case of violation, "justifies
an employee’s separation from the service."42

Issues

In this Rule 45 petition for review, the following issues are posed for resolution:

I.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER’S OBESITY

CAN BE A GROUND FOR DISMISSAL UNDER PARAGRAPH (e) OF ARTICLE 282 OF THE LABOR CODE OF
THE PHILIPPINES;

II.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER’S

DISMISSAL FOR OBESITY CAN BE PREDICATED ON THE "BONA FIDE OCCUPATIONAL QUALIFICATION
(BFOQ) DEFENSE";

III.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER WAS NOT
UNDULY DISCRIMINATED AGAINST WHEN HE WAS DISMISSED WHILE OTHER OVERWEIGHT CABIN
ATTENDANTS WERE EITHER GIVEN FLYING DUTIES OR PROMOTED;

IV.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT BRUSHED ASIDE PETITIONER’S
CLAIMS FOR REINSTATEMENT [AND] WAGES ALLEGEDLY FOR BEING MOOT AND
ACADEMIC.43 (Underscoring supplied)

Our Ruling

I. The obesity of petitioner is a ground for dismissal under Article 282(e) 44 of the Labor Code.

A reading of the weight standards of PAL would lead to no other conclusion than that they constitute a continuing
qualification of an employee in order to keep the job. Tersely put, an employee may be dismissed the moment he is
unable to comply with his ideal weight as prescribed by the weight standards. The dismissal of the employee would
thus fall under Article 282(e) of the Labor Code. As explained by the CA:
x x x [T]he standards violated in this case were not mere "orders" of the employer; they were the "prescribed weights"
that a cabin crew must maintain  in order to qualify for and keep his or her position in the company. In other
words, they were standards that establish continuing qualifications for an employee’s position. In this sense, the
failure to maintain these standards does not fall under Article 282(a) whose express terms require the element of
willfulness in order to be a ground for dismissal. The failure to meet the employer’s qualifying standards is in fact a
ground that does not squarely fall under grounds (a) to (d) and is therefore one that falls under Article 282(e) – the
"other causes analogous to the foregoing."

By its nature, these "qualifying standards" are norms that apply prior to and after an employee is hired. They
apply prior to employment because these are the standards a job applicant must initially meet in order to be hired.
They apply after hiring because an employee must continue to meet these standards while on the job in order to
keep his job. Under this perspective, a violation is not one of the faults for which an employee can be dismissed
pursuant to pars. (a) to (d) of Article 282; the employee can be dismissed simply because he no longer "qualifies" for
his job irrespective of whether or not the failure to qualify was willful or intentional. x x x45

Petitioner, though, advances a very interesting argument. He claims that obesity is a "physical abnormality and/or
illness."46 Relying on Nadura v. Benguet Consolidated, Inc.,47 he says his dismissal is illegal:

Conscious of the fact that Nadura’s case cannot be made to fall squarely within the specific causes enumerated in
subparagraphs 1(a) to (e), Benguet invokes the provisions of subparagraph 1(f) and says that Nadura’s illness –
occasional attacks of asthma – is a cause analogous to them.

Even a cursory reading of the legal provision under consideration is sufficient to convince anyone that, as the trial
court said, "illness cannot be included as an analogous cause by any stretch of imagination."

It is clear that, except the just cause mentioned in sub-paragraph 1(a), all the others expressly enumerated in the law
are due to the voluntary and/or willful act of the employee. How Nadura’s illness could be considered as "analogous"
to any of them is beyond our understanding, there being no claim or pretense that the same was contracted through
his own voluntary act.48

The reliance on Nadura is off-tangent. The factual milieu in Nadura is substantially different from the case at
bar. First, Nadura was not decided under the Labor Code. The law applied in that case was Republic Act (RA) No.
1787. Second, the issue of flight safety is absent in Nadura, thus, the rationale there cannot apply here. Third,
in Nadura, the employee who was a miner, was laid off from work because of illness, i.e., asthma. Here, petitioner
was dismissed for his failure to meet the weight standards of PAL. He was not dismissed due to illness. Fourth, the
issue in Nadura is whether or not the dismissed employee is entitled to separation pay and damages. Here, the issue
centers on the propriety of the dismissal of petitioner for his failure to meet the weight standards of PAL. Fifth,
in Nadura, the employee was not accorded due process. Here, petitioner was accorded utmost leniency. He was
given more than four (4) years to comply with the weight standards of PAL.

In the case at bar, the evidence on record militates against petitioner’s claims that obesity is a disease. That he was
able to reduce his weight from 1984 to 1992 clearly shows that it is possible for him to lose weight given the proper
attitude, determination, and self-discipline. Indeed, during the clarificatory hearing on December 8, 1992, petitioner
himself claimed that "[t]he issue is could I bring my weight down to ideal weight which is 172, then the answer is yes.
I can do it now."49

True, petitioner claims that reducing weight is costing him "a lot of expenses." 50 However, petitioner has only himself
to blame. He could have easily availed the assistance of the company physician, per the advice of PAL. 51 He chose to
ignore the suggestion. In fact, he repeatedly failed to report when required to undergo weight checks, without offering
a valid explanation. Thus, his fluctuating weight indicates absence of willpower rather than an illness.

Petitioner cites Bonnie Cook v. State of Rhode Island, Department of Mental Health, Retardation and
Hospitals,52 decided by the United States Court of Appeals (First Circuit). In that case, Cook worked from 1978 to
1980 and from 1981 to 1986 as an institutional attendant for the mentally retarded at the Ladd Center that was being
operated by respondent. She twice resigned voluntarily with an unblemished record. Even respondent admitted that
her performance met the Center’s legitimate expectations. In 1988, Cook re-applied for a similar position. At that time,
"she stood 5’2" tall and weighed over 320 pounds." Respondent claimed that the morbid obesity of plaintiff
compromised her ability to evacuate patients in case of emergency and it also put her at greater risk of serious
diseases.
Cook contended that the action of respondent amounted to discrimination on the basis of a handicap. This was in
direct violation of Section 504(a) of the Rehabilitation Act of 1973, 53 which incorporates the remedies contained in
Title VI of the Civil Rights Act of 1964. Respondent claimed, however, that morbid obesity could never constitute a
handicap within the purview of the Rehabilitation Act. Among others, obesity is a mutable condition, thus plaintiff
could simply lose weight and rid herself of concomitant disability.

The appellate Court disagreed and held that morbid obesity is a disability under the Rehabilitation Act and that
respondent discriminated against Cook based on "perceived" disability. The evidence included expert testimony that
morbid obesity is a physiological disorder. It involves a dysfunction of both the metabolic system and the neurological
appetite – suppressing signal system, which is capable of causing adverse effects within the musculoskeletal,
respiratory, and cardiovascular systems. Notably, the Court stated that "mutability is relevant only in determining the
substantiality of the limitation flowing from a given impairment," thus "mutability only precludes those conditions that
an individual can easily and quickly reverse by behavioral alteration."

Unlike Cook, however, petitioner is not morbidly obese. In the words of the District Court for the District of Rhode
Island, Cook was sometime before 1978 "at least one hundred pounds more than what is considered appropriate of
her height." According to the Circuit Judge, Cook weighed "over 320 pounds" in 1988. Clearly, that is not the case
here. At his heaviest, petitioner was only less than 50 pounds over his ideal weight.

In fine, We hold that the obesity of petitioner, when placed in the context of his work as flight attendant, becomes an
analogous cause under Article 282(e) of the Labor Code that justifies his dismissal from the service. His obesity may
not be unintended, but is nonetheless voluntary. As the CA correctly puts it, "[v]oluntariness basically means that the
just cause is solely attributable to the employee without any external force influencing or controlling his actions. This
element runs through all just causes under Article 282, whether they be in the nature of a wrongful action or omission.
Gross and habitual neglect, a recognized just cause, is considered voluntary although it lacks the element of intent
found in Article 282(a), (c), and (d)."54

II. The dismissal of petitioner can be predicated on the bona fide occupational qualification defense.

Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the
employer can show that sex, religion, or national origin is an actual qualification for performing the job. The
qualification is called a bona fide occupational qualification (BFOQ). 55 In the United States, there are a few federal
and many state job discrimination laws that contain an exception allowing an employer to engage in an otherwise
unlawful form of prohibited discrimination when the action is based on a BFOQ necessary to the normal operation of
a business or enterprise.56

Petitioner contends that BFOQ is a statutory defense. It does not exist if there is no statute providing for it. 57 Further,
there is no existing BFOQ statute that could justify his dismissal.58

Both arguments must fail.

First, the Constitution,59 the Labor Code,60 and RA No. 727761 or the Magna Carta for Disabled Persons62 contain
provisions similar to BFOQ.

Second, in British Columbia Public Service Employee Commission (BSPSERC) v. The British Columbia Government
and Service Employee’s Union (BCGSEU),63 the Supreme Court of Canada adopted the so-called "Meiorin Test" in
determining whether an employment policy is justified. Under this test, (1) the employer must show that it adopted the
standard for a purpose rationally connected to the performance of the job; 64 (2) the employer must establish that the
standard is reasonably necessary65 to the accomplishment of that work-related purpose; and (3) the employer must
establish that the standard is reasonably necessary in order to accomplish the legitimate work-related purpose.
Similarly, in Star Paper Corporation v. Simbol,66 this Court held that in order to justify a BFOQ, the employer must
prove that (1) the employment qualification is reasonably related to the essential operation of the job involved; and (2)
that there is factual basis for believing that all or substantially all persons meeting the qualification would be unable to
properly perform the duties of the job.67

In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ. 68 BFOQ is valid
"provided it reflects an inherent quality reasonably necessary for satisfactory job performance."69
In Duncan Association of Detailman-PTGWTO v. Glaxo Wellcome Philippines, Inc., 70 the Court did not hesitate to
pass upon the validity of a company policy which prohibits its employees from marrying employees of a rival
company. It was held that the company policy is reasonable considering that its purpose is the protection of the
interests of the company against possible competitor infiltration on its trade secrets and procedures.

Verily, there is no merit to the argument that BFOQ cannot be applied if it has no supporting statute. Too, the Labor
Arbiter,71 NLRC,72 and CA73 are one in holding that the weight standards of PAL are reasonable. A common carrier,
from the nature of its business and for reasons of public policy, is bound to observe extraordinary diligence for the
safety of the passengers it transports. 74 It is bound to carry its passengers safely as far as human care and foresight
can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances.75

The law leaves no room for mistake or oversight on the part of a common carrier. Thus, it is only logical to hold that
the weight standards of PAL show its effort to comply with the exacting obligations imposed upon it by law by virtue of
being a common carrier.

The business of PAL is air transportation. As such, it has committed itself to safely transport its passengers. In order
to achieve this, it must necessarily rely on its employees, most particularly the cabin flight deck crew who are on
board the aircraft. The weight standards of PAL should be viewed as imposing strict norms of discipline upon its
employees.

In other words, the primary objective of PAL in the imposition of the weight standards for cabin crew is flight safety. It
cannot be gainsaid that cabin attendants must maintain agility at all times in order to inspire passenger confidence on
their ability to care for the passengers when something goes wrong. It is not farfetched to say that airline companies,
just like all common carriers, thrive due to public confidence on their safety records. People, especially the riding
public, expect no less than that airline companies transport their passengers to their respective destinations safely
and soundly. A lesser performance is unacceptable.

The task of a cabin crew or flight attendant is not limited to serving meals or attending to the whims and caprices of
the passengers. The most important activity of the cabin crew is to care for the safety of passengers and the
evacuation of the aircraft when an emergency occurs. Passenger safety goes to the core of the job of a cabin
attendant. Truly, airlines need cabin attendants who have the necessary strength to open emergency doors, the
agility to attend to passengers in cramped working conditions, and the stamina to withstand grueling flight schedules.

On board an aircraft, the body weight and size of a cabin attendant are important factors to consider in case of
emergency. Aircrafts have constricted cabin space, and narrow aisles and exit doors. Thus, the arguments of
respondent that "[w]hether the airline’s flight attendants are overweight or not has no direct relation to its mission of
transporting passengers to their destination"; and that the weight standards "has nothing to do with airworthiness of
respondent’s airlines," must fail.

The rationale in Western Air Lines v. Criswell76 relied upon by petitioner cannot apply to his case. What was involved
there were two (2) airline pilots who were denied reassignment as flight engineers upon reaching the age of 60, and a
flight engineer who was forced to retire at age 60. They sued the airline company, alleging that the age-60 retirement
for flight engineers violated the Age Discrimination in Employment Act of 1967. Age-based BFOQ and being
overweight are not the same. The case of overweight cabin attendants is another matter. Given the cramped cabin
space and narrow aisles and emergency exit doors of the airplane, any overweight cabin attendant would certainly
have difficulty navigating the cramped cabin area.

In short, there is no need to individually evaluate their ability to perform their task. That an obese cabin attendant
occupies more space than a slim one is an unquestionable fact which courts can judicially recognize without
introduction of evidence.77 It would also be absurd to require airline companies to reconfigure the aircraft in order to
widen the aisles and exit doors just to accommodate overweight cabin attendants like petitioner.

The biggest problem with an overweight cabin attendant is the possibility of impeding passengers from evacuating
the aircraft, should the occasion call for it. The job of a cabin attendant during emergencies is to speedily get the
passengers out of the aircraft safely. Being overweight necessarily impedes mobility. Indeed, in an emergency
situation, seconds are what cabin attendants are dealing with, not minutes. Three lost seconds can translate into
three lost lives. Evacuation might slow down just because a wide-bodied cabin attendant is blocking the narrow
aisles. These possibilities are not remote.
Petitioner is also in estoppel. He does not dispute that the weight standards of PAL were made known to him prior to
his employment. He is presumed to know the weight limit that he must maintain at all times. 78 In fact, never did he
question the authority of PAL when he was repeatedly asked to trim down his weight. Bona fides exigit ut quod
convenit fiat. Good faith demands that what is agreed upon shall be done. Kung ang tao ay tapat kanyang
tutuparin ang napagkasunduan.

Too, the weight standards of PAL provide for separate weight limitations based on height and body frame for both
male and female cabin attendants. A progressive discipline is imposed to allow non-compliant cabin attendants
sufficient opportunity to meet the weight standards. Thus, the clear-cut rules obviate any possibility for the
commission of abuse or arbitrary action on the part of PAL.

III. Petitioner failed to substantiate his claim that he was discriminated against by PAL.

Petitioner next claims that PAL is using passenger safety as a convenient excuse to discriminate against him. 79 We
are constrained, however, to hold otherwise. We agree with the CA that "[t]he element of discrimination came into
play in this case as a secondary position for the private respondent in order to escape the consequence of dismissal
that being overweight entailed. It is a confession-and-avoidance position that impliedly admitted the cause of
dismissal, including the reasonableness of the applicable standard and the private respondent’s failure to comply." 80 It
is a basic rule in evidence that each party must prove his affirmative allegation.81

Since the burden of evidence lies with the party who asserts an affirmative allegation, petitioner has to prove his
allegation with particularity. There is nothing on the records which could support the finding of discriminatory
treatment. Petitioner cannot establish discrimination by simply naming the supposed cabin attendants who are
allegedly similarly situated with him. Substantial proof must be shown as to how and why they are similarly situated
and the differential treatment petitioner got from PAL despite the similarity of his situation with other employees.

Indeed, except for pointing out the names of the supposed overweight cabin attendants, petitioner miserably failed to
indicate their respective ideal weights; weights over their ideal weights; the periods they were allowed to fly despite
their being overweight; the particular flights assigned to them; the discriminating treatment they got from PAL; and
other relevant data that could have adequately established a case of discriminatory treatment by PAL. In the words of
the CA, "PAL really had no substantial case of discrimination to meet."82

We are not unmindful that findings of facts of administrative agencies, like the Labor Arbiter and the NLRC, are
accorded respect, even finality.83 The reason is simple: administrative agencies are experts in matters within their
specific and specialized jurisdiction.84 But the principle is not a hard and fast rule. It only applies if the findings of facts
are duly supported by substantial evidence. If it can be shown that administrative bodies grossly misappreciated
evidence of such nature so as to compel a conclusion to the contrary, their findings of facts must necessarily be
reversed. Factual findings of administrative agencies do not have infallibility and must be set aside when they fail the
test of arbitrariness.85

Here, the Labor Arbiter and the NLRC inexplicably misappreciated evidence. We thus annul their findings.

To make his claim more believable, petitioner invokes the equal protection clause guaranty 86 of the Constitution.
However, in the absence of governmental interference, the liberties guaranteed by the Constitution cannot be
invoked.87 Put differently, the Bill of Rights is not meant to be invoked against acts of private individuals. 88 Indeed, the
United States Supreme Court, in interpreting the Fourteenth Amendment, 89 which is the source of our equal
protection guarantee, is consistent in saying that the equal protection erects no shield against private conduct,
however discriminatory or wrongful.90 Private actions, no matter how egregious, cannot violate the equal protection
guarantee.91

IV. The claims of petitioner for reinstatement and wages are moot.

As his last contention, petitioner avers that his claims for reinstatement and wages have not been mooted. He is
entitled to reinstatement and his full backwages, "from the time he was illegally dismissed" up to the time that the
NLRC was reversed by the CA.92

At this point, Article 223 of the Labor Code finds relevance:

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the
reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either
be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or,  at
the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the
execution for reinstatement provided herein.

The law is very clear. Although an award or order of reinstatement is self-executory and does not require a writ of
execution,93 the option to exercise actual reinstatement or payroll reinstatement belongs to the employer. It does not
belong to the employee, to the labor tribunals, or even to the courts.

Contrary to the allegation of petitioner that PAL "did everything under the sun" to frustrate his "immediate return to his
previous position,"94 there is evidence that PAL opted to physically reinstate him to a substantially equivalent position
in accordance with the order of the Labor Arbiter.95 In fact, petitioner duly received the return to work notice on
February 23, 2001, as shown by his signature.96

Petitioner cannot take refuge in the pronouncements of the Court in a case 97 that "[t]he unjustified refusal of the
employer to reinstate the dismissed employee entitles him to payment of his salaries effective from the time the
employer failed to reinstate him despite the issuance of a writ of execution" 98 and ""even if the order of reinstatement
of the Labor Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages
of the employee during the period of appeal until reversal by the higher court."99 He failed to prove that he complied
with the return to work order of PAL. Neither does it appear on record that he actually rendered services for PAL from
the moment he was dismissed, in order to insist on the payment of his full backwages.

In insisting that he be reinstated to his actual position despite being overweight, petitioner in effect wants to render
the issues in the present case moot. He asks PAL to comply with the impossible. Time and again, the Court ruled that
the law does not exact compliance with the impossible.100

V. Petitioner is entitled to separation pay.

Be that as it may, all is not lost for petitioner.

Normally, a legally dismissed employee is not entitled to separation pay. This may be deduced from the language of
Article 279 of the Labor Code that "[a]n employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances,
and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from
him up to the time of his actual reinstatement." Luckily for petitioner, this is not an ironclad rule.

Exceptionally, separation pay is granted to a legally dismissed employee as an act "social justice," 101 or based on
"equity."102 In both instances, it is required that the dismissal (1) was not for serious misconduct; and (2) does not
reflect on the moral character of the employee.103

Here, We grant petitioner separation pay equivalent to one-half (1/2) month’s pay for every year of service. 104 It
should include regular allowances which he might have been receiving.105 We are not blind to the fact that he was not
dismissed for any serious misconduct or to any act which would reflect on his moral character. We also recognize
that his employment with PAL lasted for more or less a decade.

WHEREFORE, the appealed Decision of the Court of Appeals is AFFIRMED but MODIFIED in that petitioner
Armando G. Yrasuegui is entitled to separation pay in an amount equivalent to one-half (1/2) month’s pay for every
year of service, which should include his regular allowances.

SO ORDERED.
 9. G.R. No. 188920               February 16, 2010

JOSE L. ATIENZA, JR., MATIAS V. DEFENSOR, JR., RODOLFO G. VALENCIA, DANILO E. SUAREZ,
SOLOMON R. CHUNGALAO, SALVACION ZALDIVAR-PEREZ, HARLIN CAST-ABAYON, MELVIN G. MACUSI
and ELEAZAR P. QUINTO, Petitioners,
vs.
COMMISSION ON ELECTIONS, MANUEL A. ROXAS II, FRANKLIN M. DRILON and J.R. NEREUS O.
ACOSTA, Respondents.

DECISION

ABAD, J.:

This petition is an offshoot of two earlier cases already resolved by the Court involving a leadership dispute within a
political party. In this case, the petitioners question their expulsion from that party and assail the validity of the
election of new party leaders conducted by the respondents.

Statement of the Facts and the Case

For a better understanding of the controversy, a brief recall of the preceding events is in order.

On July 5, 2005 respondent Franklin M. Drilon (Drilon), as erstwhile president of the Liberal Party (LP), announced
his party’s withdrawal of support for the administration of President Gloria Macapagal-Arroyo. But petitioner Jose L.
Atienza, Jr. (Atienza), LP Chairman, and a number of party members denounced Drilon’s move, claiming that he
made the announcement without consulting his party.

On March 2, 2006 petitioner Atienza hosted a party conference to supposedly discuss local autonomy and party
matters but, when convened, the assembly proceeded to declare all positions in the LP’s ruling body vacant and
elected new officers, with Atienza as LP president. Respondent Drilon immediately filed a petition 1 with the
Commission on Elections (COMELEC) to nullify the elections. He claimed that it was illegal considering that the
party’s electing bodies, the National Executive Council (NECO) and the National Political Council (NAPOLCO), were
not properly convened. Drilon also claimed that under the amended LP Constitution,2 party officers were elected to a
fixed three-year term that was yet to end on November 30, 2007.

On the other hand, petitioner Atienza claimed that the majority of the LP’s NECO and NAPOLCO attended the March
2, 2006 assembly. The election of new officers on that occasion could be likened to "people power," wherein the LP
majority removed respondent Drilon as president by direct action. Atienza also said that the amendments 3 to the
original LP Constitution, or the Salonga Constitution, giving LP officers a fixed three-year term, had not been properly
ratified. Consequently, the term of Drilon and the other officers already ended on July 24, 2006.

On October 13, 2006, the COMELEC issued a resolution, 4 partially granting respondent Drilon’s petition. It annulled
the March 2, 2006 elections and ordered the holding of a new election under COMELEC supervision. It held that the
election of petitioner Atienza and the others with him was invalid since the electing assembly did not convene in
accordance with the Salonga Constitution. But, since the amendments to the Salonga Constitution had not been
properly ratified, Drilon’s term may be deemed to have ended. Thus, he held the position of LP president in a
holdover capacity until new officers were elected.

Both sides of the dispute came to this Court to challenge the COMELEC rulings. On April 17, 2007 a divided Court
issued a resolution,5 granting respondent Drilon’s petition and denying that of petitioner Atienza. The Court held,
through the majority, that the COMELEC had jurisdiction over the intra-party leadership dispute; that the Salonga
Constitution had been validly amended; and that, as a consequence, respondent Drilon’s term as LP president was to
end only on November 30, 2007.
Subsequently, the LP held a NECO meeting to elect new party leaders before respondent Drilon’s term expired. Fifty-
nine NECO members out of the 87 who were supposedly qualified to vote attended. Before the election, however,
several persons associated with petitioner Atienza sought to clarify their membership status and raised issues
regarding the composition of the NECO. Eventually, that meeting installed respondent Manuel A. Roxas II (Roxas) as
the new LP president.

On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G. Valencia, Danilo E. Suarez, Solomon R.
Chungalao, Salvacion Zaldivar-Perez, Harlin Cast-Abayon, Melvin G. Macusi, and Eleazar P. Quinto, filed a petition
for mandatory and prohibitory injunction6 before the COMELEC against respondents Roxas, Drilon and J.R. Nereus
O. Acosta, the party secretary general. Atienza, et al. sought to enjoin Roxas from assuming the presidency of the
LP, claiming that the NECO assembly which elected him was invalidly convened. They questioned the existence of a
quorum and claimed that the NECO composition ought to have been based on a list appearing in the party’s 60th
Anniversary Souvenir Program. Both Atienza and Drilon adopted that list as common exhibit in the earlier cases and
it showed that the NECO had 103 members.

Petitioners Atienza, et al. also complained that Atienza, the incumbent party chairman, was not invited to the NECO
meeting and that some members, like petitioner Defensor, were given the status of "guests" during the meeting.
Atienza’s allies allegedly raised these issues but respondent Drilon arbitrarily thumbed them down and "railroaded"
the proceedings. He suspended the meeting and moved it to another room, where Roxas was elected without notice
to Atienza’s allies.

On the other hand, respondents Roxas, et al. claimed that Roxas’ election as LP president faithfully complied with the
provisions of the amended LP Constitution. The party’s 60th Anniversary Souvenir Program could not be used for
determining the NECO members because supervening events changed the body’s number and composition. Some
NECO members had died, voluntarily resigned, or had gone on leave after accepting positions in the government.
Others had lost their re-election bid or did not run in the May 2007 elections, making them ineligible to serve as
NECO members. LP members who got elected to public office also became part of the NECO. Certain persons of
national stature also became NECO members upon respondent Drilon’s nomination, a privilege granted the LP
president under the amended LP Constitution. In other words, the NECO membership was not fixed or static; it
changed due to supervening circumstances.

Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza, Zaldivar-Perez, and Cast-Abayon
resigned for holding the illegal election of LP officers on March 2, 2006. This was pursuant to a March 14, 2006
NAPOLCO resolution that NECO subsequently ratified. Meanwhile, certain NECO members, like petitioners
Defensor, Valencia, and Suarez, forfeited their party membership when they ran under other political parties during
the May 2007 elections. They were dropped from the roster of LP members.

On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners Atienza, et al.’s petition. It noted
that the May 2007 elections necessarily changed the composition of the NECO since the amended LP Constitution
explicitly made incumbent senators, members of the House of Representatives, governors and mayors members of
that body. That some lost or won these positions in the May 2007 elections affected the NECO membership.
Petitioners failed to prove that the NECO which elected Roxas as LP president was not properly convened.

As for the validity of petitioners Atienza, et al.’s expulsion as LP members, the COMELEC observed that this was a
membership issue that related to disciplinary action within the political party. The COMELEC treated it as an internal
party matter that was beyond its jurisdiction to resolve.

Without filing a motion for reconsideration of the COMELEC resolution, petitioners Atienza, et al. filed this petition for
certiorari under Rule 65.

The Issues Presented

Respondents Roxas, et al. raise the following threshold issues:

1. Whether or not the LP, which was not impleaded in the case, is an indispensable party; and

2. Whether or not petitioners Atienza, et al., as ousted LP members, have the requisite legal standing to
question Roxas’ election.
 Petitioners Atienza, et al., on the other hand, raise the following issues:

3. Whether or not the COMELEC gravely abused its discretion when it upheld the NECO membership that
elected respondent Roxas as LP president;

4. Whether or not the COMELEC gravely abused its discretion when it resolved the issue concerning the
validity of the NECO meeting without first resolving the issue concerning the expulsion of Atienza, et al. from
the party; and

5. Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.’s constitutional right to due
process by the latter’s expulsion from the party.

The Court’s Ruling

One. Respondents Roxas, et al. assert that the Court should dismiss the petition for failure of petitioners Atienza, et
al. to implead the LP as an indispensable party. Roxas, et al. point out that, since the petition seeks the issuance of a
writ of mandatory injunction against the NECO, the controversy could not be adjudicated with finality without making
the LP a party to the case.7

But petitioners Atienza, et al.’s causes of action in this case consist in respondents Roxas, et al.’s disenfranchisement
of Atienza, et al. from the election of party leaders and in the illegal election of Roxas as party president. Atienza, et
al. were supposedly excluded from the elections by a series of "despotic acts" of Roxas, et al., who controlled the
proceedings. Among these acts are Atienza, et al.’s expulsion from the party, their exclusion from the NECO, and
respondent Drilon’s "railroading" of election proceedings. Atienza, et al. attributed all these illegal and prejudicial acts
to Roxas, et al.

Since no wrong had been imputed to the LP nor had some affirmative relief been sought from it, the LP is not an
indispensable party. Petitioners Atienza, et al.’s prayer for the undoing of respondents Roxas, et al.’s acts and the
reconvening of the NECO are directed against Roxas, et al.

Two. Respondents Roxas, et al. also claim that petitioners Atienza, et al. have no legal standing to question the
election of Roxas as LP president because they are no longer LP members, having been validly expelled from the
party or having joined other political parties.8 As non-members, they have no stake in the outcome of the action.

But, as the Court held in David v. Macapagal-Arroyo, 9 legal standing in suits is governed by the "real parties-in-
interest" rule under Section 2, Rule 3 of the Rules of Court. This states that "every action must be prosecuted or
defended in the name of the real party-in-interest." And "real party-in-interest" is one who stands to be benefited or
injured by the judgment in the suit or the party entitled to the avails of the suit. In other words, the plaintiff’s standing
is based on his own right to the relief sought. In raising petitioners Atienza, et al.’s lack of standing as a threshold
issue, respondents Roxas, et al. would have the Court hypothetically assume the truth of the allegations in the
petition.

Here, it is precisely petitioners Atienza, et al.’s allegations that respondents Roxas, et al. deprived them of their rights
as LP members by summarily excluding them from the LP roster and not allowing them to take part in the election of
its officers and that not all who sat in the NECO were in the correct list of NECO members. If Atienza, et al.’s
allegations were correct, they would have been irregularly expelled from the party and the election of officers, void.
Further, they would be entitled to recognition as members of good standing and to the holding of a new election of
officers using the correct list of NECO members. To this extent, therefore, Atienza, et al. who want to take part in
another election would stand to be benefited or prejudiced by the Court’s decision in this case. Consequently, they
have legal standing to pursue this petition.

Three. In assailing respondent Roxas’ election as LP president, petitioners Atienza, et al. claim that the NECO
members allowed to take part in that election should have been limited to those in the list of NECO members
appearing in the party’s 60th Anniversary Souvenir Program. Atienza, et al. allege that respondent Drilon, as holdover
LP president, adopted that list in the earlier cases before the COMELEC and it should thus bind respondents Roxas,
et al. The Court’s decision in the earlier cases, said Atienza, et al., anointed that list for the next party election. Thus,
Roxas, et al. in effect defied the Court’s ruling when they removed Atienza as party chairman and changed the
NECO’s composition.10
But the list of NECO members appearing in the party’s 60th Anniversary Souvenir Program was drawn before the
May 2007 elections. After the 2007 elections, changes in the NECO membership had to be redrawn to comply with
what the amended LP Constitution required. Respondent Drilon adopted the souvenir program as common exhibit in
the earlier cases only to prove that the NECO, which supposedly elected Atienza as new LP president on March 2,
2006, had been improperly convened. It cannot be regarded as an immutable list, given the nature and character of
the NECO membership.

Nothing in the Court’s resolution in the earlier cases implies that the NECO membership should be pegged to the
party’s 60th Anniversary Souvenir Program. There would have been no basis for such a position. The amended LP
Constitution did not intend the NECO membership to be permanent. Its Section 27 11 provides that the NECO shall
include all incumbent senators, members of the House of Representatives, governors, and mayors who were LP
members in good standing for at least six months. It follows from this that with the national and local elections taking
place in May 2007, the number and composition of the NECO would have to yield to changes brought about by the
elections.

Former NECO members who lost the offices that entitled them to membership had to be dropped. Newly elected
ones who gained the privilege because of their offices had to come in. Furthermore, former NECO members who
passed away, resigned from the party, or went on leave could not be expected to remain part of the NECO that
convened and held elections on November 26, 2007. In addition, Section 27 of the amended LP Constitution
expressly authorized the party president to nominate "persons of national stature" to the NECO. Thus, petitioners
Atienza, et al. cannot validly object to the admission of 12 NECO members nominated by respondent Drilon when he
was LP president. Even if this move could be regarded as respondents Roxas, et al.’s way of ensuring their election
as party officers, there was certainly nothing irregular about the act under the amended LP Constitution.

The NECO was validly convened in accordance with the amended LP Constitution. Respondents Roxas, et al.
explained in details how they arrived at the NECO composition for the purpose of electing the party leaders. 12 The
explanation is logical and consistent with party rules. Consequently, the COMELEC did not gravely abuse its
discretion when it upheld the composition of the NECO that elected Roxas as LP president.

Petitioner Atienza claims that the Court’s resolution in the earlier cases recognized his right as party chairman with a
term, like respondent Drilon, that would last up to November 30, 2007 and that, therefore, his ouster from that
position violated the Court’s resolution. But the Court’s resolution in the earlier cases did not preclude the party from
disciplining Atienza under Sections 2913 and 4614 of the amended LP Constitution. The party could very well remove
him or any officer for cause as it saw fit.

Four. Petitioners Atienza, et al. lament that the COMELEC selectively exercised its jurisdiction when it ruled on the
composition of the NECO but refused to delve into the legality of their expulsion from the party. The two issues, they
said, weigh heavily on the leadership controversy involved in the case. The previous rulings of the Court, they claim,
categorically upheld the jurisdiction of the COMELEC over intra-party leadership disputes.15

But, as respondents Roxas, et al. point out, the key issue in this case is not the validity of the expulsion of petitioners
Atienza, et al. from the party, but the legitimacy of the NECO assembly that elected respondent Roxas as LP
president. Given the COMELEC’s finding as upheld by this Court that the membership of the NECO in question
complied with the LP Constitution, the resolution of the issue of whether or not the party validly expelled petitioners
cannot affect the election of officers that the NECO held.1avvphi1

While petitioners Atienza, et al. claim that the majority of LP members belong to their faction, they did not specify who
these members were and how their numbers could possibly affect the composition of the NECO and the outcome of
its election of party leaders. Atienza, et al. has not bothered to assail the individual qualifications of the NECO
members who voted for Roxas. Nor did Atienza, et al. present proof that the NECO had no quorum when it then
assembled. In other words, the claims of Atienza, et al. were totally unsupported by evidence.

Consequently, petitioners Atienza, et al. cannot claim that their expulsion from the party impacts on the party
leadership issue or on the election of respondent Roxas as president so that it was indispensable for the COMELEC
to adjudicate such claim. Under the circumstances, the validity or invalidity of Atienza, et al.’s expulsion was purely a
membership issue that had to be settled within the party. It is an internal party matter over which the COMELEC has
no jurisdiction.
What is more, some of petitioner Atienza’s allies raised objections before the NECO assembly regarding the status of
members from their faction. Still, the NECO proceeded with the election, implying that its membership, whose
composition has been upheld, voted out those objections.

The COMELEC’s jurisdiction over intra-party disputes is limited. It does not have blanket authority to resolve any and
all controversies involving political parties. Political parties are generally free to conduct their activities without
interference from the state. The COMELEC may intervene in disputes internal to a party only when necessary to the
discharge of its constitutional functions.

The COMELEC’s jurisdiction over intra-party leadership disputes has already been settled by the Court. The Court
ruled in Kalaw v. Commission on Elections 16 that the COMELEC’s powers and functions under Section 2, Article IX-C
of the Constitution, "include the ascertainment of the identity of the political party and its legitimate officers
responsible for its acts." The Court also declared in another case 17 that the COMELEC’s power to register political
parties necessarily involved the determination of the persons who must act on its behalf. Thus, the COMELEC may
resolve an intra-party leadership dispute, in a proper case brought before it, as an incident of its power to register
political parties.

The validity of respondent Roxas’ election as LP president is a leadership issue that the COMELEC had to settle.
Under the amended LP Constitution, the LP president is the issuing authority for certificates of nomination of party
candidates for all national elective positions. It is also the LP president who can authorize other LP officers to issue
certificates of nomination for candidates to local elective posts.18 In simple terms, it is the LP president who certifies
the official standard bearer of the party.

The law also grants a registered political party certain rights and privileges that will redound to the benefit of its official
candidates. It imposes, too, legal obligations upon registered political parties that have to be carried out through their
leaders. The resolution of the leadership issue is thus particularly significant in ensuring the peaceful and orderly
conduct of the elections.19

Five. Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue of party membership or
discipline; it involves a violation of their constitutionally-protected right to due process of law. They claim that the
NAPOLCO and the NECO should have first summoned them to a hearing before summarily expelling them from the
party. According to Atienza, et al., proceedings on party discipline are the equivalent of administrative
proceedings20 and are, therefore, covered by the due process requirements laid down in Ang Tibay v. Court of
Industrial Relations.21

But the requirements of administrative due process do not apply to the internal affairs of political parties. The due
process standards set in Ang Tibay cover only administrative bodies created by the state and through which certain
governmental acts or functions are performed. An administrative agency or instrumentality "contemplates an authority
to which the state delegates governmental power for the performance of a state function." 22 The constitutional
limitations that generally apply to the exercise of the state’s powers thus, apply too, to administrative bodies.

The constitutional limitations on the exercise of the state’s powers are found in Article III of the Constitution or the Bill
of Rights. The Bill of Rights, which guarantees against the taking of life, property, or liberty without due process under
Section 1 is generally a limitation on the state’s powers in relation to the rights of its citizens. The right to due process
is meant to protect ordinary citizens against arbitrary government action, but not from acts committed by private
individuals or entities. In the latter case, the specific statutes that provide reliefs from such private acts apply. The
right to due process guards against unwarranted encroachment by the state into the fundamental rights of its citizens
and cannot be invoked in private controversies involving private parties.23

Although political parties play an important role in our democratic set-up as an intermediary between the state and its
citizens, it is still a private organization, not a state instrument. The discipline of members by a political party does not
involve the right to life, liberty or property within the meaning of the due process clause. An individual has no vested
right, as against the state, to be accepted or to prevent his removal by a political party. The only rights, if any, that
party members may have, in relation to other party members, correspond to those that may have been freely agreed
upon among themselves through their charter, which is a contract among the party members. Members whose rights
under their charter may have been violated have recourse to courts of law for the enforcement of those rights, but not
as a due process issue against the government or any of its agencies.
But even when recourse to courts of law may be made, courts will ordinarily not interfere in membership and
disciplinary matters within a political party. A political party is free to conduct its internal affairs, pursuant to its
constitutionally-protected right to free association. In Sinaca v. Mula, 24 the Court said that judicial restraint in internal
party matters serves the public interest by allowing the political processes to operate without undue interference. It is
also consistent with the state policy of allowing a free and open party system to evolve, according to the free choice
of the people.25

To conclude, the COMELEC did not gravely abuse its discretion when it upheld Roxas’ election as LP president but
refused to rule on the validity of Atienza, et al.’s expulsion from the party. While the question of party leadership has
implications on the COMELEC’s performance of its functions under Section 2, Article IX-C of the Constitution, the
same cannot be said of the issue pertaining to Atienza, et al.’s expulsion from the LP. Such expulsion is for the
moment an issue of party membership and discipline, in which the COMELEC cannot intervene, given the limited
scope of its power over political parties.

WHEREFORE, the Court DISMISSES the petition and UPHOLDS the Resolution of the Commission on Elections
dated June 18, 2009 in COMELEC Case SPP 08-001.

SO ORDERED.
 10 .G.R. No. 186228               March 15, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ANTONIO LAUGA Y PINA ALIAS TERIO, Accused-Appellant.

DECISION

PEREZ, J.:

Before Us for final review is the trial court’s conviction of the appellant for the rape of his thirteen-year old daughter.

Consistent with the ruling of this Court in People v. Cabalquinto, 1 the real name and the personal circumstances of
the victim, and any other information tending to establish or compromise her identity, including those of her
immediate family or household members, are not disclosed in this decision.

The Facts

In an Information dated 21 September 2000, 2 the appellant was accused of the crime of QUALIFIED RAPE allegedly
committed as follows:

That on or about the 15th day of March 2000, in the evening, at Barangay xxx, municipality of xxx, province of
Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father
of AAA with lewd design, with the use of force and intimidation, did then and there, willfully, unlawfully and criminally
have carnal knowledge with his own daughter AAA, a 13 year[s]old minor against her will.3

On 12 October 2000, appellant entered a plea of not guilty.4 During the pre-trial conference, the prosecution and the
defense stipulated and admitted: (a) the correctness of the findings indicated in the medical certificate of the
physician who examined AAA; (b) that AAA was only thirteen (13) years old when the alleged offense was committed;
and (c) that AAA is the daughter of the appellant. 5 On trial, three (3) witnesses testified for the prosecution, namely:
victim AAA;6 her brother BBB;7 and one Moises Boy Banting,8 a "bantay bayan" in the barangay. Their testimonies
revealed the following:

In the afternoon of 15 March 2000, AAA was left alone at home. 9 AAA’s father, the appellant, was having a drinking
spree at the neighbor’s place.10 Her mother decided to leave because when appellant gets drunk, he has the habit of
mauling AAA’s mother.11 Her only brother BBB also went out in the company of some neighbors.12

At around 10:00 o’clock in the evening, appellant woke AAA up;13 removed his pants, slid inside the blanket covering
AAA and removed her pants and underwear;14 warned her not to shout for help while threatening her with his
fist;15 and told her that he had a knife placed above her head. 16 He proceeded to mash her breast, kiss her
repeatedly, and "inserted his penis inside her vagina."17

Soon after, BBB arrived and found AAA crying. 18 Appellant claimed he scolded her for staying out late. 19 BBB decided
to take AAA with him.20 While on their way to their maternal grandmother’s house, AAA recounted her harrowing
experience with their father.21 Upon reaching their grandmother’s house, they told their grandmother and uncle of the
incident,22 after which, they sought the assistance of Moises Boy Banting.23

Moises Boy Banting found appellant in his house wearing only his underwear.24 He invited appellant to the police
station,25 to which appellant obliged. At the police outpost, he admitted to him that he raped AAA because he was
unable to control himself.26

The following day, AAA submitted herself to physical examination. 27 Dra. Josefa Arlita L. Alsula, Municipal Health
Officer of x x x, Bukidnon, issued the Medical Certificate, which reads:
hyperemic vulvae with 4 o’clock & 6 o’clock freshly lacerated hymen; (+) minimal to moderate bloody discharges 2° to
an alleged raping incident28

On the other hand, only appellant testified for the defense. He believed that the charge against him was ill-motivated
because he sometimes physically abuses his wife in front of their children after engaging in a heated argument, 29 and
beats the children as a disciplinary measure. 30 He went further to narrate how his day was on the date of the alleged
rape.

He alleged that on 15 March 2000, there was no food prepared for him at lunchtime. 31 Shortly after, AAA
arrived.32 She answered back when confronted.33 This infuriated him that he kicked her hard on her buttocks.34

Appellant went back to work and went home again around 3 o’clock in the afternoon. 35 Finding nobody at home,36 he
prepared his dinner and went to sleep.37

Later in the evening, he was awakened by the members of the "Bantay Bayan" headed by Moises Boy
Banting.38 They asked him to go with them to discuss some matters. 39 He later learned that he was under detention
because AAA charged him of rape.40

On 8 July 2006, the Regional Trial Court, Branch 9, Malaybalay City, Bukidnon, rendered its decision 41 in Criminal
Case No. 10372-0, finding appellant guilty of rape qualified by relationship and minority, and sentenced him to suffer
the penalty of reclusion perpetua.42 It also ordered him to indemnify AAA ₱50,000.00 as moral damages, and
₱50,000.00 as civil indemnity with exemplary damages of ₱25,000.00.43

On 30 September 2008, the decision of the trial court was AFFIRMED with MODIFICATIONS 44 by the Court of
Appeals in CA-G.R. CR HC No. 00456-MIN. 45 The appellate court found that appellant is not eligible for parole and it
increased both the civil indemnity and moral damages from ₱50,000.00 to ₱75,000.00.46

On 24 November 2008, the Court of Appeals gave due course to the appellant’s notice of appeal. 47 This Court
required the parties to simultaneously file their respective supplemental briefs, 48 but both manifested that they will no
longer file supplemental pleadings.49

The lone assignment of error in the appellant’s brief is that, the trial court gravely erred in finding him guilty as
charged despite the failure of the prosecution to establish his guilt beyond reasonable doubt, 50 because: (1) there
were inconsistencies in the testimonies of AAA and her brother BBB; 51 (2) his extrajudicial confession before Moises
Boy Banting was without the assistance of a counsel, in violation of his constitutional right; 52 and (3) AAA’s accusation
was ill-motivated.53

Our Ruling

Appellant contests the admissibility in evidence of his alleged confession with a "bantay bayan" and the credibility of
the witnesses for the prosecution.

Admissibility in Evidence of an Extrajudicial Confession before a "Bantay Bayan"

Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a "bantay bayan," the confession was
inadmissible in evidence because he was not assisted by a lawyer and there was no valid waiver of such
requirement.54

The case of People v. Malngan55 is the authority on the scope of the Miranda doctrine provided for under Article III,
Section 12(1)56 and (3)57 of the Constitution. In Malngan, appellant questioned the admissibility of her extrajudicial
confessions given to the barangay chairman and a neighbor of the private complainant. This Court distinguished.
Thus:

Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law
enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-
appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the
only one, in the fire that destroyed several houses x x x. She was, therefore, already under custodial investigation
and the rights guaranteed by x x x [the] Constitution should have already been observed or applied to her. Accused-
appellant’s confession to Barangay Chairman x x x was made in response to the ‘interrogation’ made by the latter –
admittedly conducted without first informing accused-appellant of her rights under the Constitution or done in the
presence of counsel. For this reason, the confession of accused-appellant, given to Barangay Chairman x x x, as well
as the lighter found x x x in her bag are inadmissible in evidence against her x x x.1avvphi1

[But such does] not automatically lead to her acquittal. x x x [T]he constitutional safeguards during custodial
investigations do not apply to those not elicited through questioning by the police or their agents but given in an
ordinary manner whereby the accused verbally admits x x x as x x x in the case at bar when accused-appellant
admitted to Mercedita Mendoza, one of the neighbors x x x [of the private complainant].58 (Emphasis supplied)

Following the rationale behind the ruling in Malngan, this Court needs to ascertain whether or not a "bantay bayan"
may be deemed a law enforcement officer within the contemplation of Article III, Section 12 of the Constitution.

In People of the Philippines v. Buendia,59 this Court had the occasion to mention the nature of a "bantay bayan," that
is, "a group of male residents living in [the] area organized for the purpose of keeping peace in their
community[,which is] an accredited auxiliary of the x x x PNP."60

Also, it may be worthy to consider that pursuant to Section 1(g) of Executive Order No. 309 issued on 11 November
1987, as amended, a Peace and Order Committee in each barangay shall be organized "to serve as implementing
arm of the City/Municipal Peace and Order Council at the Barangay level."61 The composition of the Committee
includes, among others: (1) the Punong Barangay as Chairman; (2) the Chairman of the Sangguniang Kabataan; (3)
a Member of the Lupon Tagapamayapa; (4) a Barangay Tanod; and (5) at least three (3) Members of existing
Barangay-Based Anti-Crime or neighborhood Watch Groups or a Non Government Organization Representative well-
known in his community.62

This Court is, therefore, convinced that barangay-based volunteer organizations in the nature of watch groups, as in
the case of the "bantay bayan," are recognized by the local government unit to perform functions relating to the
preservation of peace and order at the barangay level. Thus, without ruling on the legality of the actions taken by
Moises Boy Banting, and the specific scope of duties and responsibilities delegated to a "bantay bayan," particularly
on the authority to conduct a custodial investigation, any inquiry he makes has the color of a state-related function
and objective insofar as the entitlement of a suspect to his constitutional rights provided for under Article III, Section
12 of the Constitution, otherwise known as the Miranda Rights, is concerned.

We, therefore, find the extrajudicial confession of appellant, which was taken without a counsel, inadmissible in
evidence.

Be that as it may, We agree with the Court of Appeals that the conviction of the appellant was not deduced solely
from the assailed extrajudicial confession but "from the confluence of evidence showing his guilt beyond reasonable
doubt."63

Credibility of the Witnesses for the Prosecution

Appellant assails the inconsistencies in the testimonies of AAA and her brother BBB. AAA testified that BBB
accompanied her to the house of their grandmother. Thereafter, they, together with her relatives, proceeded to look
for a "bantay bayan." On the other hand, BBB testified that he brought her sister to the house of their "bantay bayan"
after he learned of the incident.

Citing Bartocillo v. Court of Appeals, 64 appellant argues that "where the testimonies of two key witnesses cannot
stand together, the inevitable conclusion is that one or both must be telling a lie, and their story a mere concoction."65

The principle, however, is not applicable in the case at bar. In Bartocillo, the two testimonies could not simply stand
together because:

On one hand, if we are to believe Susan, Orlando could not have possibly seen the hacking incident since he had
accompanied Vicente home. On the other hand, if we are to accept the testimony of Orlando, then Susan could not
have possibly witnessed the hacking incident since she was with Vicente at that time.
Here, the testimony of AAA does not run contrary to that of BBB. Both testified that they sought the help of a "bantay
bayan." Their respective testimonies differ only as to when the help was sought for, which this Court could well
attribute to the nature of the testimony of BBB, a shortcut version of AAA’s testimony that dispensed with a detailed
account of the incident.

At any rate, the Court of Appeals is correct in holding that the assailed inconsistency is too trivial to affect the veracity
of the testimonies.66 In fact, inconsistencies which refer to minor, trivial or inconsequential circumstances even
strengthen the credibility of the witnesses, as they erase doubts that such testimonies have been coached or
rehearsed.67

Appellant’s contention that AAA charged him of rape only because she bore grudges against him is likewise
unmeritorious. This Court is not dissuaded from giving full credence to the testimony of a minor complainant by
motives of feuds, resentment or revenge.68 As correctly pointed out by the Court of Appeals:

Indeed, mere disciplinary chastisement is not strong enough to make daughters in a Filipino family invent a charge
that would not only bring shame and humiliation upon them and their families but also bring their fathers into the
gallows of death.69 The Supreme Court has repeatedly held that it is unbelievable for a daughter to charge her own
father with rape, exposing herself to the ordeal and embarrassment of a public trial and subjecting her private parts to
examination if such heinous crime was not in fact committed. 70 No person, much less a woman, could attain such
height of cruelty to one who has sired her, and from whom she owes her very existence, and for which she naturally
feels loving and lasting gratefulness.71 Even when consumed with revenge, it takes a certain amount of psychological
depravity for a young woman to concoct a story which would put her own father to jail for the most of his remaining
life and drag the rest of the family including herself to a lifetime of shame. 72 It is highly improbable for [AAA] against
whom no proof of sexual perversity or loose morality has been shown to fake charges much more against her own
father. In fact her testimony is entitled to greater weight since her accusing words were directed against a close
relative.73

Elements of Rape

Having established the credibility of the witnesses for the prosecution, We now examine the applicability of the Anti-
Rape Law of 199774 to the case at bar.

The law provides, in part, that rape is committed, among others, "[b]y a man who shall have carnal knowledge of a
woman" "through force, threat or intimidation."75 The death penalty shall be imposed if it is committed with
aggravating/qualifying circumstances, which include, "[w]hen the victim is under eighteen (18) years of age and the
offender is a parent."76

The consistent and forthright testimony of AAA detailing how she was raped, culminating with the penetration of
appellant’s penis into her vagina, suffices to prove that appellant had carnal knowledge of her. When a woman states
that she has been raped, she says in effect all that is necessary to show that rape was committed. 77 Further, when
such testimony corresponds with medical findings, there is sufficient basis to conclude that the essential requisites of
carnal knowledge have been established.78

The Court of Appeals pointed out that the element of force or intimidation is not essential when the accused is the
father of the victim, inasmuch as his superior moral ascendancy or influence substitutes for violence and
intimidation.79 At any rate, AAA was actually threatened by appellant with his fist and a knife allegedly placed above
AAA’s head.80

It may be added that the self-serving defense of appellant cannot prevail over the positive and straightforward
testimony of AAA. Settled is the rule that, "alibi is an inherently weak defense that is viewed with suspicion because it
is easy to fabricate."81 "Alibi and denial must be supported by strong corroborative evidence in order to merit
credibility."82 Moreover, for the defense of alibi to prosper, the accused must establish two elements – (1) he was not
at the locus delicti at the time the offense was committed; and (2) it was physically impossible for him to be at the
scene at the time of its commission.83 Appellant failed in this wise.

Aggravating/Qualifying Circumstances
The presence of the qualifying circumstances of minority and relationship with the offender in the instant case has
likewise been adequately established. Both qualifying circumstances were specifically alleged in the Information,
stipulated on and admitted during the pre-trial conference, and testified to by both parties in their respective
testimonies. Also, such stipulation and admission, as correctly pointed out by the Court of Appeals, are binding upon
this Court because they are judicial admissions within the contemplation of Section 4, Rule 129 of the Revised Rules
of Court. It provides:

Sec. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the
same case, does not require proof. The admission may be contradicted only by showing that it was made through
palpable mistake or that no such admission was made.

Penalty

Finally, in increasing the amount of civil indemnity and damages each from ₱50,000.00 to ₱75,000.00, the Court of
Appeals correctly considered controlling jurisprudence to the effect that where, as here, the rape is committed with
any of the qualifying/aggravating circumstances warranting the imposition of the death penalty, the victim is entitled to
₱75,000.00 as civil indemnity ex delicto84 and ₱75,000.00 as moral damages.85 However, the award of exemplary
damages should have been increased from ₱25,000.00 to ₱30,000.00.86 Also, the penalty of reclusion perpetua in
lieu of death was correctly imposed considering that the imposition of the death penalty upon appellant would have
been appropriate were it not for the enactment of Republic Act No. 9346, or An Act Prohibiting the Imposition of
Death Penalty in the Philippines.87 We further affirm the ruling of the Court of Appeals on appellant’s non-eligibility for
parole. Sec. 3 of Republic Act No. 9346 clearly provides that "persons convicted of offenses punished with reclusion
perpetua, or whose sentences will be reduced to reclusion perpetua by reason of the law, shall not be eligible for
parole."

WHEREFORE, the Decision of the Court of Appeals dated 30 September 2008 in CA-G.R. CR HC No. 00456-MIN is
hereby AFFIRMED. Appellant Antonio Lauga is GUILTY beyond reasonable doubt of qualified rape, and is hereby
sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay AAA ₱75,000.00 as civil
indemnity, ₱75,000.00 as moral damages, and ₱30,000.00 as exemplary damages.

SO ORDERED.
 10. G.R. No. 185128               January 30, 2012
(Formerly UDK No. 13980)

RUBEN DEL CASTILLO @ BOY CASTILLO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

For this Court's consideration is the Petition for Review1 on Certiorari under Rule 45 of Ruben del Castillo assailing
the Decision2 dated July 31, 2006 and Resolution3 dated December 13, 2007 of the Court of Appeals (CA) in CA-G.R.
CR No. 27819, which affirmed the Decision 4 dated March 14, 2003 of the Regional Trial Court (RTC), Branch 12,
Cebu, in Criminal Case No. CBU-46291, finding petitioner guilty beyond reasonable doubt of violation of Section 16,
Article III of Republic Act (R.A.) 6425.

The facts, as culled from the records, are the following:

Pursuant to a confidential information that petitioner was engaged in selling shabu, police officers headed by SPO3
Bienvenido Masnayon, after conducting surveillance and test-buy operation at the house of petitioner, secured a
search warrant from the RTC and around 3 o'clock in the afternoon of September 13, 1997, the same police
operatives went to Gil Tudtud St., Mabolo, Cebu City to serve the search warrant to petitioner.

Upon arrival, somebody shouted "raid," which prompted them to immediately disembark from the jeep they were
riding and went directly to petitioner's house and cordoned it. The structure of the petitioner's residence is a two-
storey house and the petitioner was staying in the second floor. When they went upstairs, they met petitioner's wife
and informed her that they will implement the search warrant. But before they can search the area, SPO3 Masnayon
claimed that he saw petitioner run towards a small structure, a nipa hut, in front of his house. Masnayon chased him
but to no avail, because he and his men were not familiar with the entrances and exits of the place.

They all went back to the residence of the petitioner and closely guarded the place where the subject ran for cover.
SPO3 Masnayon requested his men to get a barangay tanod and a few minutes thereafter, his men returned with
two barangay tanods.

In the presence of the barangay tanod, Nelson Gonzalado, and the elder sister of petitioner named Dolly del Castillo,
searched the house of petitioner including the nipa hut where the petitioner allegedly ran for cover. His men who
searched the residence of the petitioner found nothing, but one of the barangay tanods was able to confiscate from
the nipa hut several articles, including four (4) plastic packs containing white crystalline substance. Consequently, the
articles that were confiscated were sent to the PNP Crime Laboratory for examination. The contents of the four (4)
heat- sealed transparent plastic packs were subjected to laboratory examination, the result of which proved positive
for the presence of methamphetamine hydrochloride, or shabu.

Thus, an Information was filed before the RTC against petitioner, charging him with violation of Section 16, Article III
of R.A. 6425, as amended. The Information5 reads:
That on or about the 13th day of September 1997, at about 3:00 p.m. in the City of Cebu, Philippines and within the
jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there have in his
possession and control four (4) packs of white crystalline powder, having a total weight of 0.31 gram, locally known
as "shabu," all containing methamphetamine hydrochloride, a regulated drug, without license or prescription from any
competent authority.

CONTRARY TO LAW.6

During arraignment, petitioner, with the assistance of his counsel, pleaded not guilty. 7 Subsequently, trial on the
merits ensued.

To prove the earlier mentioned incident, the prosecution presented the testimonies of SPO3 Bienvenido Masnayon,
PO2 Milo Arriola, and Forensic Analyst, Police Inspector Mutchit Salinas.

The defense, on the other hand, presented the testimonies of petitioner, Jesusa del Castillo, Dalisay del Castillo and
Herbert Aclan, which can be summarized as follows:

On September 13, 1997, around 3 o'clock in the afternoon, petitioner was installing the electrical wirings and
airconditioning units of the Four Seasons Canteen and Beauty Parlor at Wacky Bldg., Cabancalan, Cebu. He was
able to finish his job around 6 o'clock in the evening, but he was engaged by the owner of the establishment in a
conversation. He was able to go home around 8:30-9 o'clock in the evening. It was then that he learned from his wife
that police operatives searched his house and found nothing. According to him, the small structure, 20 meters away
from his house where they found the confiscated items, was owned by his older brother and was used as a storage
place by his father.

After trial, the RTC found petitioner guilty beyond reasonable of the charge against him in the Information. The
dispositive portion of the Decision reads:

WHEREFORE, premises considered, this Court finds the accused Ruben del Castillo "alyas Boy Castillo," GUILTY of
violating Section 16, Article III, Republic Act No. 6425, as amended. There being no mitigating nor aggravating
circumstances proven before this Court, and applying the Indeterminate Sentence Law, he is sentenced to suffer the
penalty of Six (6) Months and One (1) Day as Minimum and Four (4) Years and Two (2) Months as Maximum
of Prision Correccional.

The four (4) small plastic packets of white crystalline substance having a total weight of 0.31 gram, positive for the
presence of methamphetamine hydrochloride, are ordered confiscated and shall be destroyed in accordance with the
law.

SO ORDERED.8

Aggrieved, petitioner appealed his case with the CA, but the latter affirmed the decision of the RTC, thus:

WHEREFORE, the challenged Decision is AFFIRMED in toto and the appeal is DISMISSED, with costs against
accused-appellant.

SO ORDERED.9

After the motion for reconsideration of petitioner was denied by the CA, petitioner filed with this Court the present
petition for certiorari under Rule 45 of the Rules of Court with the following arguments raised:

1. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE PROVISIONS OF THE

CONSTITUTION, THE RULES OF COURT AND ESTABLISHED JURISPRUDENCE VIS-A-VIS VALIDITY
OF SEARCH WARRANT NO. 570-9-1197-24;

2. THE COURT OF APPEALS ERRED IN RULING THAT THE FOUR (4) PACKS OF WHITE
CRYSTALLINE POWDER ALLEGEDLY FOUND ON THE FLOOR OF THE NIPA HUT OR STRUCTURE
ARE ADMISSIBLE IN EVIDENCE AGAINST THE PETITIONER, NOT ONLY BECAUSE THE SAID COURT
 SIMPLY PRESUMED THAT IT WAS USED BY THE PETITIONER OR THAT THE PETITIONER RAN TO IT
FOR COVER WHEN THE SEARCHING TEAM ARRIVED AT HIS RESIDENCE, BUT ALSO, PRESUMING
THAT THE SAID NIPA HUT OR STRUCTURE WAS INDEED USED BY THE PETITIONER AND THE
FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER WERE FOUND THEREAT. THE SUBJECT FOUR
(4) PACKS OF WHITE CRYSTALLINE POWDER ARE FRUITS OF THE POISONOUS TREE; and

3. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE ELEMENT OF "POSSESSION" AS

AGAINST THE PETITIONER, AS IT WAS IN VIOLATION OF THE ESTABLISHED JURISPRUDENCE ON
THE MATTER. HAD THE SAID COURT PROPERLY APPLIED THE ELEMENT IN QUESTION, IT COULD
HAVE BEEN ASSAYED THAT THE SAME HAD NOT BEEN PROVEN. 10

The Office of the Solicitor General (OSG), in its Comment dated February 10, 2009, enumerated the following
counter-arguments:

SEARCH WARRANT No. 570-9-11-97-24 issued by Executive Judge Priscilla S. Agana of Branch 24, Regional Trial
Court of Cebu City is valid.

II

The four (4) packs of shabu seized inside the shop of petitioner are admissible in evidence against him.

III

The Court of Appeals did not err in finding him guilty of illegal possession of prohibited drugs.11

Petitioner insists that there was no probable cause to issue the search warrant, considering that SPO1 Reynaldo
Matillano, the police officer who applied for it, had no personal knowledge of the alleged illegal sale of drugs during a
test-buy operation conducted prior to the application of the same search warrant. The OSG, however, maintains that
the petitioner, aside from failing to file the necessary motion to quash the search warrant pursuant to Section 14, Rule
127 of the Revised Rules on Criminal Procedure, did not introduce clear and convincing evidence to show that
Masnayon was conscious of the falsity of his assertion or representation.

Anent the second argument, petitioner asserts that the nipa hut located about 20 meters away from his house is no
longer within the "permissible area" that may be searched by the police officers due to the distance and that the
search warrant did not include the same nipa hut as one of the places to be searched. The OSG, on the other hand,
argues that the constitutional guaranty against unreasonable searches and seizure is applicable only against
government authorities and not to private individuals such as the barangay tanod who found the folded paper
containing packs of shabu inside the nipa hut.

As to the third argument raised, petitioner claims that the CA erred in finding him guilty beyond reasonable doubt of
illegal possession of prohibited drugs, because he could not be presumed to be in possession of the same just
because they were found inside the nipa hut. Nevertheless, the OSG dismissed the argument of the petitioner, stating
that, when prohibited and regulated drugs are found in a house or other building belonging to and occupied by a
particular person, the presumption arises that such person is in possession of such drugs in violation of law, and the
fact of finding the same is sufficient to convict.

This Court finds no merit on the first argument of petitioner.

The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable cause must
be determined personally by the judge; (3) the judge must examine, in writing and under oath or affirmation, the
complainant and the witnesses he or she may produce; (4) the applicant and the witnesses testify on the facts
personally known to them; and (5) the warrant specifically describes the place to be searched and the things to be
seized.12 According to petitioner, there was no probable cause. Probable cause for a search warrant is defined as
such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has
been committed and that the objects sought in connection with the offense are in the place sought to be searched. 13 A
finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been
committed and that it was committed by the accused. Probable cause demands more than bare suspicion; it requires
less than evidence which would justify conviction. 14 The judge, in determining probable cause, is to consider the
totality of the circumstances made known to him and not by a fixed and rigid formula, 15 and must employ a flexible,
totality of the circumstances standard.16 The existence depends to a large degree upon the finding or opinion of the
judge conducting the examination. This Court, therefore, is in no position to disturb the factual findings of the judge
which led to the issuance of the search warrant. A magistrate's determination of probable cause for the issuance of a
search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that
determination.17 Substantial basis means that the questions of the examining judge brought out such facts and
circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed,
and the objects in connection with the offense sought to be seized are in the place sought to be searched. 18 A review
of the records shows that in the present case, a substantial basis exists.

With regard to the second argument of petitioner, it must be remembered that the warrant issued must particularly
describe the place to be searched and persons or things to be seized in order for it to be valid. A designation or
description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the
peace officers to it, satisfies the constitutional requirement of definiteness. 19 In the present case, Search Warrant No.
570-9-1197-2420 specifically designates or describes the residence of the petitioner as the place to be searched.
Incidentally, the items were seized by a barangay tanod in a nipa hut, 20 meters away from the residence of the
petitioner. The confiscated items, having been found in a place other than the one described in the search warrant,
can be considered as fruits of an invalid warrantless search, the presentation of which as an evidence is a violation of
petitioner's constitutional guaranty against unreasonable searches and seizure. The OSG argues that, assuming that
the items seized were found in another place not designated in the search warrant, the same items should still be
admissible as evidence because the one who discovered them was a barangay tanod who is a private individual, the
constitutional guaranty against unreasonable searches and seizure being applicable only against government
authorities. The contention is devoid of merit.

It was testified to during trial by the police officers who effected the search warrant that they asked the assistance of
the barangay tanods, thus, in the testimony of SPO3 Masnayon:

Fiscal Centino:

Q For how long did the chase take place?

A Just a very few moments.

Q After that, what did you [do] when you were not able to reach him?

A I watched his shop and then I requested my men to get a barangay tanod.

Q Were you able to get a barangay tanod?

A Yes.

Q Can you tell us what is the name of the barangay tanod?

A Nelson Gonzalado.

Q For point of clarification, how many barangay tanod [did] your driver get?

A Two.

Q What happened after that?

A We searched the house, but we found negative.

Q Who proceeded to the second floor of the house?

A SPO1 Cirilo Pogoso and Milo Areola went upstairs and found nothing.

Q What about you, where were you?

A I [was] watching his shop and I was with Matillano.

Q What about the barangay tanod?

A Together with Milo and Pogoso.

Q When the search at the second floor of the house yielded negative what did you do?

A They went downstairs because I was suspicious of his shop because he ran from his shop, so we
searched his shop.

Q Who were with you when you searched the shop?

A The barangay tanod Nilo Gonzalado, the elder sister of Ruben del Castillo named Dolly del Castillo.

Q You mean to say, that when (sic) SPO1 Reynaldo Matillano, Barangay Tanod Nilo Gonzalado and the elder
sister of Ruben del Castillo were together in the shop?

A Yes.

Q What happened at the shop?

A One of the barangay tanods was able to pick up white folded paper.

Q What [were] the contents of that white folded paper?

A A plastic pack containing white crystalline.

Q Was that the only item?

A There are others like the foil, scissor.

Q Were you present when those persons found those tin foil and others inside the electric shop?

A Yes.21

The fact that no items were seized in the residence of petitioner and that the items that were actually seized were
found in another structure by a barangay tanod, was corroborated by PO2 Arriola, thus:

FISCAL:

Q So, upon arriving at the house of Ruben del Castillo alias Boy, can you still recall what took place?

A We cordoned the area.

Q And after you cordoned the area, did anything happen?

A We waited for the barangay tanod.

Q And did the barangay tanod eventually appear?

A Yes. And then we started our search in the presence of Ruben del Castillo's wife.

Q What is the name of the wife of Ruben del Castillo?

A I cannot recall her name, but if I see her I can recall [her] face.

Q What about Ruben del Castillo, was she around when [you] conducted the search?

A No. Ruben was not in the house. But our team leader, team mate Bienvenido Masnayon saw that Ruben ran away
from his adjacent electronic shop near his house, in front of his house.

Q Did you find anything during the search in the house of Ruben del Castillo?

A After our search in the house, we did not see anything. The house was clean.

Q What did you do afterwards, if any?

A We left (sic) out of the house and proceeded to his electronic shop.

Q Do you know the reason why you proceeded to his electronic shop?

A Yes. Because our team leader Bienvenido Masnayon saw that (sic) Ruben run from that store and furthermore the
door was open.

Q How far is the electronic shop from the house of Ruben del Castillo?

A More or less, 5 to 6 meters in front of his house.

xxxx

Q So, who entered inside the electronic shop?

A The one who first entered the electronic shop is our team leader Bienvenido Masnayon.

Q You mentioned that Masnayon entered first. Do you mean to say that there were other persons or other person that
followed after Masnayon?

A Then we followed suit.

Q All of your police officers and the barangay tanod followed suit?

A I led Otadoy and the barangay tanod.

Q What about you?

A I also followed suit.

Q And did anything happen inside the shop of Ruben del Castillo?

A It was the barangay tanod who saw the folded paper and I saw him open the folded paper which contained
four shabu deck.
Q How far were you when you saw the folded paper and the tanod open the folded paper?

A We were side by side because the shop was very small.22

SPO1 Pogoso also testified on the same matter, thus:

FISCAL CENTINO:

Q And where did you conduct the search, Mr. Witness?

A At his residence, the two-storey house.

Q Among the three policemen, who were with you in conducting the search at the residence of the accused?

A I, Bienvenido Masnayon.

Q And what transpired after you searched the house of Ruben del Castillo?

A Negative, no shabu.

Q And what happened afterwards, if any?

A We went downstairs and proceeded to the small house.

Q Can you please describe to this Honorable Court, what was that small house which you proceeded to?

A It is a nipa hut.

Q And more or less, how far or near was it from the house of Ruben del Castillo?

A 5 to 10 meters.

Q And could you tell Mr. Witness, what was that nipa hut supposed to be?

A That was the electronic shop of Ruben del Castillo.

Q And what happened when your team proceeded to the nipa hut?

A I was just outside the nipa hut.

Q And who among the team went inside?

A PO2 Milo Areola and the Barangay Tanod.23

Having been established that the assistance of the barangay tanods was sought by the police authorities who
effected the searched warrant, the same barangay tanods therefore acted as agents of persons in authority. Article
152 of the Revised Penal Code defines persons in authority and agents of persons in authority as:

x x x any person directly vested with jurisdiction, whether as an individual or as a member of some court or
governmental corporation, board or commission, shall be deemed a person in authority. A barangay captain and a
barangay chairman shall also be deemed a person in authority.

A person who, by direct provision of law or by election or by appointment by competent authority, is charged with
the maintenance of public order and the protection and security of life and property, such as barrio
councilman, barrio policeman and barangay leader, and any person who comes to the aid of persons in
authority, shall be deemed an agent of a person in authority.

The Local Government Code also contains a provision which describes the function of a barangay tanod as an agent
of persons in authority. Section 388 of the Local Government Code reads:

SEC. 388. Persons in Authority. - For purposes of the Revised Penal Code, the punong barangay, sangguniang
barangay members, and members of the lupong tagapamayapa in each barangay shall be deemed as persons in
authority in their jurisdictions, while other barangay officials and members who may be designated by law or
ordinance and charged with the maintenance of public order, protection and security of life and property, or
the maintenance of a desirable and balanced environment, and any barangay member who comes to the aid
of persons in authority, shall be deemed agents of persons in authority.

By virtue of the above provisions, the police officers, as well as the barangay tanods were acting as agents of a
person in authority during the conduct of the search. Thus, the search conducted was unreasonable and the
confiscated items are inadmissible in evidence. Assuming ex gratia argumenti that the barangay tanod who found the
confiscated items is considered a private individual, thus, making the same items admissible in evidence, petitioner's
third argument that the prosecution failed to establish constructive possession of the regulated drugs seized, would
still be meritorious.

Appellate courts will generally not disturb the factual findings of the trial court since the latter has the unique
opportunity to weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment
and manner of testifying,24 unless attended with arbitrariness or plain disregard of pertinent facts or circumstances,
the factual findings are accorded the highest degree of respect on appeal25 as in the present case.

It must be put into emphasis that this present case is about the violation of Section 16 of R.A. 6425. In every
prosecution for the illegal possession of shabu, the following essential elements must be established: (a) the accused
is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities;
and (c) the accused has knowledge that the said drug is a regulated drug.26

In People v. Tira,27 this Court explained the concept of possession of regulated drugs, to wit:

This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must
prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes
not only actual possession, but also constructive possession. Actual possession exists when the drug is in the
immediate physical possession or control of the accused. On the other hand, constructive possession exists when the
drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over
the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if
his right to exercise control and dominion over the place where the contraband is located, is shared with another.28

While it is not necessary that the property to be searched or seized should be owned by the person against whom the
search warrant is issued, there must be sufficient showing that the property is under appellant’s control or
possession.29 The CA, in its Decision, referred to the possession of regulated drugs by the petitioner as a constructive
one. Constructive possession exists when the drug is under the dominion and control of the accused or when he has
the right to exercise dominion and control over the place where it is found. 30 The records are void of any evidence to
show that petitioner owns the nipa hut in question nor was it established that he used the said structure as a shop.
The RTC, as well as the CA, merely presumed that petitioner used the said structure due to the presence of electrical
materials, the petitioner being an electrician by profession. The CA, in its Decision, noted a resolution by the
investigating prosecutor, thus:

x x x As admitted by respondent's wife, her husband is an electrician by occupation. As such, conclusion could be
arrived at that the structure, which housed the electrical equipments is actually used by the respondent. Being the
case, he has control of the things found in said structure.31

In addition, the testimonies of the witnesses for the prosecution do not also provide proof as to the ownership of the
structure where the seized articles were found. During their direct testimonies, they just said, without stating their
basis, that the same structure was the shop of petitioner. 32 During the direct testimony of SPO1 Pogoso, he even
outrightly concluded that the electrical shop/nipa hut was owned by petitioner, thus:
FISCAL CENTINO:

Q Can you please describe to this Honorable Court, what was that small house which you proceeded to?

A It is a nipa hut.

Q And more or less, how far or near was it from the house of Ruben del Castillo?

A 5 to 10 meters.

Q And could you tell Mr. Witness, what was that nipa hut supposed to be?

A That was the electronic shop of Ruben del Castillo.

Q And what happened when your team proceeded to the nipa hut?

A I was just outside the nipa hut.33

However, during cross-examination, SPO3 Masnayon admitted that there was an electrical shop but denied what he
said in his earlier testimony that it was owned by petitioner, thus:

ATTY. DAYANDAYAN:

Q You testified that Ruben del Castillo has an electrical shop, is that correct?

A He came out of an electrical shop. I did not say that he owns the shop.

Q Now, this shop is within a structure?

A Yes.

Q How big is the structure?

A It is quite a big structure, because at the other side is a mahjong den and at the other side is a structure rented by a
couple.34

The prosecution must prove that the petitioner had knowledge of the existence and presence of the drugs in the place
under his control and dominion and the character of the drugs.35 With the prosecution's failure to prove that the nipa
hut was under petitioner's control and dominion, there casts a reasonable doubt as to his guilt. In considering a
criminal case, it is critical to start with the law's own starting perspective on the status of the accused - in all criminal
prosecutions, he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable
doubt.36 Proof beyond reasonable doubt, or that quantum of proof sufficient to produce a moral certainty that would
convince and satisfy the conscience of those who act in judgment, is indispensable to overcome the constitutional
presumption of innocence.37 1âwphi1

WHEREFORE, the Decision dated July 31, 2006 of the Court of Appeals in CA-G. R. No. 27819, which affirmed the
Decision dated March 14, 2003 of the Regional Trial Court, Branch 12, Cebu, in Criminal Case No. CBU-46291 is
hereby REVERSED and SET ASIDE. Petitioner Ruben del Castillo is ACQUITTED on reasonable doubt.

SO ORDERED.
B.3 Provisions of the Bill of Rights are self –executing: CASES

1. G.R. No. 122156 February 3, 1997

MANILA PRINCE HOTEL petitioner,

vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
BELLOSILLO, J.:

The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos,  is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel
1

Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the
provision is not self-executing but requires an implementing legislation for its enforcement.
Corollarily, they ask whether the 51% shares form part of the national economy and patrimony
covered by the protective mantle of the Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to
the privatization program of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/reservation system, and financial support
to strengthen the profitability and performance of the Manila Hotel.  In a close bidding held on 18
2

September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a
Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for
the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.

Pertinent provisions of the bidding rules prepared by respondent GSIS state —

I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC —

1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the

GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila
Hotel. . . .

b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC

PARTNER —

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:

a. Execution of the necessary contracts with GSIS/MHC not later than

October 23, 1995 (reset to November 3, 1995); and
 b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/OGCC (Office of the Government Corporate Counsel)
are obtained. 3

Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution
of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong Berhad.  In a subsequent letter
4

dated 10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three
Million Pesos (P33.000.000.00) as Bid Security to match the bid of the Malaysian Group,
Messrs. Renong Berhad . . .  which respondent GSIS refused to accept.
5

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On
18 October 1995 the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.

On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to
it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique
M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.

In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a
historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony.  Petitioner also argues that
6

since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which
is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business
of respondent GSIS being a part of the tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered
by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share.8

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision
and requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done." 9

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and
second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner
speaks of the guests who have slept in the hotel and the events that have transpired therein which
make the hotel historic, these alone do not make the hotel fall under the patrimony of the nation.
What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct from the Philippines as a State.

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it
right from the beginning and not after it had lost in the bidding.

Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that
the privilege of submitting a matching bid has not yet arisen since it only takes place  if for any
reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid
had not yet taken place.

Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority
from which it emanates. It has been defined as the fundamental and paramount law of the
nation.   It prescribes the permanent framework of a system of government, assigns to the different
10

departments their respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a supreme law to
which all other laws must conform and in accordance with which all private rights must be
determined and all public authority administered.   Under the doctrine of constitutional supremacy, if
11

a law or contract violates any norm of the constitution that law or contract whether promulgated by
the legislative or by the executive branch or entered into by private persons for private purposes is
null and void and without any force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of citizens.   A provision which
12

lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not
self-executing. But a provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means of which the
right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-
executing if the nature and extent of the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination and construction of its terms,
and there is no language indicating that the subject is referred to the legislature for action. 
13
As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it
is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have
the power to ignore and practically nullify the mandate of the fundamental law.  This can be
14

cataclysmic. That is why the prevailing view is, as it has always been, that —

. . . in case of doubt, the Constitution should be considered self-executing rather than

non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed implementing
statute. 
15

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
executing, as they quote from discussions on the floor of the 1986 Constitutional Commission —

MR. RODRIGO. Madam President, I am asking this question as the

Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?

THE PRESIDENT. What is the question of Commissioner Rodrigo? Is

it to remove the word "QUALIFIED?".

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED

FILIPINOS" as against whom? As against aliens or over aliens?

MR. NOLLEDO. Madam President, I think that is understood. We use

the word "QUALIFIED" because the existing laws or prospective laws
will always lay down conditions under which business may be
done. For example, qualifications on the setting up of other financial
structures, et cetera (emphasis supplied by respondents)

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes,  16

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not
precluded from enacting other further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left to the legislature
without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of
the rights secured or the determination thereof, or place reasonable safeguards around the exercise
of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a provision ineffective in
the absence of such legislation. The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be
self-executing. The rule is that a self-executing provision of the constitution does not necessarily
exhaust legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available.   Subsequent 17

legislation however does not necessarily mean that the subject constitutional provision is not, by
itself, fully enforceable.

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are
not self-executing.   The argument is flawed. If the first and third paragraphs are not self-executing
18

because Congress is still to enact measures to encourage the formation and operation of enterprises
fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and
exercise authority over foreign investments within its national jurisdiction, as in the third paragraph,
then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by
its language require any legislation in order to give preference to qualified Filipinos in the grant of
rights, privileges and concessions covering the national economy and patrimony. A constitutional
provision may be self-executing in one part and non-self-executing in another.  19

Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not as judicially enforceable rights — are simply not in
point. Basco v. Philippine Amusements and Gaming Corporation   speaks of constitutional
20

provisions on personal dignity,   the sanctity of family life,   the vital role of the youth in nation-
21 22

building   the promotion of social justice,   and the values of education.   Tolentino v. Secretary of
23 24 25

Finance   refers to the constitutional provisions on social justice and human rights   and on
26 27

education.   Lastly, Kilosbayan, Inc. v. Morato   cites provisions on the promotion of general

28 29

welfare,   the sanctity of family life,   the vital role of the youth in nation-building   and the promotion
30 31 32

of total human liberation and development.   A reading of these provisions indeed clearly shows that
33

they are not judicially enforceable constitutional rights but merely guidelines for legislation. The very
terms of the provisions manifest that they are only principles upon which the legislations must be
based. Res ipsa loquitur.

On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or implementing
laws or rules for its enforcement. From its very words the provision does not require any legislation
to put it in operation. It is per se judicially enforceable When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that — qualified Filipinos shall be preferred.
And when our Constitution declares that a right exists in certain specified circumstances an action
may be maintained to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such constitutional right,
such right enforces itself by its own inherent potency and puissance, and from which all legislations
must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.

As regards our national patrimony, a member of the 1986 Constitutional Commission   explains — 34

 The patrimony of the Nation that should be conserved and developed refers not only
to out rich natural resources but also to the cultural heritage of out race. It also refers
to our intelligence in arts, sciences and letters. Therefore, we should develop not
only our lands, forests, mines and other natural resources but also the mental ability
or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.   When the
35

Constitution speaks of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term natural resources, but also to
the cultural heritage of the Filipinos.

Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was
the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors
who are accorded the traditional Philippine hospitality. 36

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of
a City.   During World War II the hotel was converted by the Japanese Military Administration into a
37

military headquarters. When the American forces returned to recapture Manila the hotel was
selected by the Japanese together with Intramuros as the two (2) places fro their final stand.
Thereafter, in the 1950's and 1960's, the hotel became the center of political activities, playing host
to almost every political convention. In 1970 the hotel reopened after a renovation and reaped
numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986
the hotel was the site of a failed coup d' etat where an aspirant for vice-president was "proclaimed"
President of the Philippine Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim
that the Filipino First Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon which the building
stands. 38

The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I would like to introduce an amendment to the Nolledo

amendment. And the amendment would consist in substituting the
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF
THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
 WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.

x x x           x x x          x x x

MR. MONSOD. Madam President, apparently the proponent is

agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it preference?

MR. DAVIDE. The Nolledo amendment would refer to an individual

Filipino. What about a corporation wholly owned by Filipino citizens?

MR. MONSOD. At least 60 percent, Madam President.

MR. DAVIDE. Is that the intention?

MR. MONSOD. Yes, because, in fact, we would be limiting it if we

say that the preference should only be 100-percent Filipino.

MR: DAVIDE. I want to get that meaning clear because "QUALIFIED

FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.

MR. MONSOD. We agree, Madam President.  39

x x x           x x x          x x x

MR. RODRIGO. Before we vote, may I request that the amendment

be read again.

MR. NOLLEDO. The amendment will read: "IN THE GRANT OF

RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include not only
individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos. 40

The phrase preference to qualified Filipinos was explained thus —

MR. FOZ. Madam President, I would like to request Commissioner

Nolledo to please restate his amendment so that I can ask a
question.

MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND

CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
 MR FOZ. In connection with that amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also qualified, will the Filipino
enterprise still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?

MR. NOLLEDO. The answer is "yes."

MR. FOZ. Thank you,  41

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues —

MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL —

THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called "Filipino First" policy. That means that Filipinos should be
given preference in the grant of concessions, privileges and rights covering the
national patrimony.  42

The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo   —
43

Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic

concerns. It is better known as the FILIPINO FIRST Policy . . . This provision was
never found in previous Constitutions . . . .

The term "qualified Filipinos" simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the pampering
and preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counter productive and
inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice has to
be made between a "qualified foreigner" end a "qualified Filipino," the latter shall be
chosen over the former."

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance
with its own guidelines so that the sole inference here is that petitioner has been found to be
possessed of proven management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel.  44

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The attempt
to violate a clear constitutional provision — by the government itself — is only too distressing. To
adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For,
even some of the provisions of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the
government a defense that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt
—

The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts — provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress,
or perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates.  45

Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument again
is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with
the prior approval of the State acting through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is so significantly involved with
the private actor as to make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although entered into by respondent GSIS, is in fact
a transaction of the State and therefore subject to the constitutional command.  46

When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions of
power — legislative, executive and judicial. Accordingly, a constitutional mandate directed to the
State is correspondingly directed to the three(3) branches of government. It is undeniable that in this
case the subject constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from the State.

It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning
bidder after it has negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the "Filipino First Policy provision of the Constitution bestows preference on
qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will
be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor
are they under obligation to enter into one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which
are presumed to be known to all the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws
and contracts must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of
price per
share.   Certainly, the constitutional mandate itself is reason enough not to award the block of
47

shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the
highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself.

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go
to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of
the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.

This Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny.
These are given factors which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and obligations under the Constitution
and the laws of the forum.

The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality
then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of
the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the
latter have a cause of action.

Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable.
Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.

Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided
in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution
not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes
more business opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this matter could have not
been more appropriately articulated by Chief Justice Narvasa —

As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility
of legislation economic in nature, the Supreme Court has not been spared criticism
for decisions perceived as obstacles to economic progress and development . . . in
connection with a temporary injunction issued by the Court's First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that injunction "again demonstrates that
the Philippine legal system can be a major obstacle to doing business here.

Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that
duty, no matter how buffeted by winds of unfair and ill-informed criticism.  48

Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over non-
material values. A commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved.  49

Nationalism is inherent, in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-
state can have no higher purpose. Any interpretation of any constitutional provision must adhere to
such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism.  50

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of
property in a commercial district. We are talking about a historic relic that has hosted many of the
most important events in the short history of the Philippines as a nation. We are talking about a hotel
where heads of states would prefer to be housed as a strong manifestation of their desire to cloak
the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel
has played and continues to play a significant role as an authentic repository of twentieth century
Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul —  a
place with a history of grandeur; a most historical setting that has played a part in the shaping of a
country. 51
This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark — this Grand Old Dame of hotels in Asia — to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from
a qualified Filipino, can be gained by the Filipinos Manila Hotel — and all that it stands for — is sold
to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted
to a foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is
the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And
this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the Constitution.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL

CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do
such other acts and deeds as may be necessary for purpose.

SO ORDERED.

Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.

It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos.
1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air.  study of the 1935 Constitution, where the concept of "national
2

patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not
only their natural resources of the country but practically everything that belongs to the Filipino
people, the tangible and the material as well as the intangible and the spiritual assets and
possessions of the people. It is to be noted that the framers did not stop with conservation. They
knew that conservation alone does not spell progress; and that this may be achieved only through
development as a correlative factor to assure to the people not only the exclusive ownership, but
also the exclusive benefits of their national patrimony).3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others.5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment"  To quote further: "Let not our children
6

be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances".7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must

refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to
the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or
equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the
qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be
made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an
opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the
qualified Filipino bidder is to be significant at all.

It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.

VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos"  is self-executory. The provision verily does not need, although it can obviously be
1

amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.

On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.

All told, I am constrained to vote for granting the petition.

MENDOZA, J., concurring in the judgment:

I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos"  is to allow petitioner Philippine
1

corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession
given by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"  so that petitioner bid for more shares, it would be
2

preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest
bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner
but by allowing it "to match the highest bid in terms of price per share" before it is awarded the
shares of stocks.  That, to me, is what "preference to qualified Filipinos" means in the context of this
3

case — by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.

This was the meaning given in Co Chiong v. Cuaderno  to a 1947 statute giving "preference to
4

Filipino citizens in the lease of public market stalls."  This Court upheld the cancellation of existing
5

leases covering market stalls occupied by persons who were not Filipinos and the award thereafter
of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly,
in Vda. de Salgado v. De la Fuente,  this Court sustained the validity of a municipal ordinance
6

passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and
granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the
stalls. In Chua Lao v. Raymundo,  the preference granted under the statute was held to apply to
7

cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public
markets even if there were available other stalls as good as those occupied by aliens. "The law,
apparently, is applicable whenever there is a conflict of interest between Filipino applicants and
aliens for lease of stalls in public markets, in which situation the right to preference immediately
arises."
8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing.  Indeed, in vital areas of our national economy, there are
9

situations in which the only way to place Filipinos in control of the national economy as contemplated
in the Constitution   is to give them preferential treatment where they can at least stand on equal
10

footing with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst,   but with the sale of
11

government property, which is like the grant of government largess of benefits and concessions
covering the national economy" and therefore no one should begrudge us if we give preferential
treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is
a business owned by the Government. It is being privatized. Privatization should result in the
relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not
in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process.   It is only the result of the public bidding that
12

is sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares).   Bids below the minimum will not be considered. On the other
13

hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will
not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to
those who have "validly submitted bids."   The suggestion is, to say the least, fanciful and has no
14

basis in fact.

For the foregoing reasons, I vote to grant the petition.

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."

I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".

Section 10, Article XII of the 1987 Constitution provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain —

The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).

Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:

x x x           x x x          x x x

MR. NOLLEDO. The Amendment will read: "IN THE

GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).

MR. MONSOD. We also wanted to add, as

Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:

 MR. NOLLEDO. In the grant of rights, privileges and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.

MR. FOZ. In connection with that amendment, if a

foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some

aspects than the Filipino enterprise, will the Filipino
still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,

Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said —

The nationalistic tendency is manifested in various provisions of the Constitution. . . .

It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.

As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be
placed in the auction block of a purely business transaction, where profits subverts the cherished
historical values of our people.

As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."

Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says — "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.

I vote GRANT the petition.

PUNO, J., dissenting:

This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel"  The proposal was approved by respondent Committee on Privatization.
1

In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:

First — Pass the prequalification process;

Second — Submit the highest bid on a price per share basis for the Block of Shares;

Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;

xxx xxx xxx

IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

 The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:

a. Proven management .expertise in the hotel

industry; or

b. Significant equity ownership (i.e. board

representation) in another hotel company; or

c. Overall management and marketing expertise to

successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide

access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.

xxx xxx xxx

D. PREQUALIFICATION DOCUMENTS

xxx xxx xxx

E. APPLICATION PROCEDURE

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration

Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:

a. Guidelines and Procedures: Second

Prequalification and Public Bidding of the MHC
Privatization

b. Confidential Information Memorandum: The Manila

Hotel Corporation

c. Letter of Invitation. to the Prequalification and

Bidding Conference

xxx xxx xxx

4. PREQUALIFICATION AND BIDDING CONFERENCE

 A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

The applicant should submit 5 sets of the prequalification documents

(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS

1. The Applicant will be evaluated by the PBAC with

the assistance of the TEC based on the Information
Package and other information available to the PBAC.

2. If the Applicant is a Consortium/Joint Venture, the

evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.

3. The decision of the PBAC with respect to the

results of the PBAC evaluation will be final.

4. The Applicant shall be evaluated according to the

criteria set forth below:

a. Business management expertise,

track record, and experience

b. Financial capability.

c. Feasibility and acceptability of the

proposed strategic plan for the Manila
Hotel

5. The PBAC will shortlist such number of Applicants as it may deem

appropriate.

6. The parties that prequalified in the first MHC public bidding — ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton — may participate in
the Public Bidding without having to undergo the prequalification
process again.

G. SHORTLIST OF QUALIFIED BIDDERS

 1. A notice of prequalification results containing the shortlist of
Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.

2. In the case of a Consortium/Joint Venture, the withdrawal by

member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.

V. GUIDELINES FOR THE PUBLIC BIDDING

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to

participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three Hundred

Thousand (15,300,000) shares of stock representing Thirty Percent
to Fifty-One Percent (30%-51%) of the issued and outstanding shares
of MHC, will be offered in the Public Bidding by the GSIS. The
Qualified Bidders will have the Option of determining the number of
shares within the range to bid for. The range is intended to attract
bidders with different preferences and objectives for the operation
and management of The Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum

bid required on a price per share basis for the Block of Shares is
Thirty-Six Pesos and Sixty-Seven Centavos (P36.67).

2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the

minimum required will not considered.

D. TRANSFER COSTS

x x x           x x x          x x x

E. OFFICIAL BID FORM

1. Bids must be contained in the prescribed Official Bid Form, a copy

of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.

2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."
 F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be

submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH).

If the Qualified Bidder is a corporation, the representative of the

Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of

the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.

2. BID SECURITY

a. The Qualified Bidder should deposit Thirty-Three Million Pesos

(P33,000,00), in Philippine currency as Bid Security in the form of:

i. Manager's check or unconditional demand draft

payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or

ii. Standby-by letter of credit issued by a reputable

banking institution acceptable to the GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have Bid Security; or

ii. The Bid Security accompanying the bid is for less

than the required amount.

c. If the Bid Security is in the form of a manager's check or

unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.

d. If the Qualified Bidder becomes the winning Bidder/Strategic

Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.

f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.

g. The Bid Security of the Highest Bidder will be forfeited in favor of

GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement

with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price

not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for

any other reason.

G. SUBMISSION OF BIDS

1. The Public Bidding will be held on September 7, 1995 at the

following location:

New GSIS Headquarters Building

Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public Bidding

to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.

3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."

4. The Qualified Bidder should submit the following documents

in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"

a. Written Authority Bid

b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and
"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.

6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.

7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.

H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at

3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.

3. Immediately following the reading of the bids, the PBAC will

formally announce the highest bid and the Highest Bidder.

4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.

5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed

period; or

b. There is only one (1) bid that is submitted and

acceptable to the PBAC.

I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC

1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
 purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute

with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.

b. The Highest Bidder must execute the Stock

Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management

Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of gross

revenues.(1)

b. Incentive fee: Maximum of 8.0% of gross operating

profit(1) after deducting undistributed overhead
expenses and the basic management fee.

c. Fixed component of the international

marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters for

the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.

A Qualified Bidder envisioning a Management Contract for The

Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will be

in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC

PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic

Partner after the following conditions are met:

a. Execution of the necessary contract with

GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and

COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the

Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.

2. All payments should be made in the form of a Manager's Check or

unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.

M. GENERAL CONDITIONS

1. The GSIS unconditionally reserves the right to reject any or all

applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.

2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.

3. The GSIS reserves the right to reset the date of the

prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
 4. The GSIS sells only whatever rights, interest and participation it
has on the Block of Shares.

5. All documents and materials submitted by the Qualified Bidders,

except the Bid Security, may be returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public

Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.

7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding.3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.

On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.

Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.

Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution  on
4

the "National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

xxx xxx xxx

The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;

(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the

controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
 (3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;

(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;

(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.  As a rule, its provisions are deemed self-executing and can be enforced without further
5

legislative action.  Some of its provisions, however, can be implemented only through appropriate
6

laws enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.

The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement.  The inquiry demands a micro-analysis of the text and the context of the provision in
7

question.8

Courts as a rule consider the provisions of the Constitution as self-executing,  rather than as 9

requiring future legislation for their enforcement.   The reason is not difficult to discern. For if they
10

are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign
people can be easily ignored and nullified by Congress.   Suffused with wisdom of the ages is the
11

unyielding rule that legislative actions may give breath to constitutional rights but congressional in
action should not suffocate them.  12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures,   the rights of a person under custodial investigation,   the rights of an accused,   and the
13 14 15

privilege against self-incrimination,   It is recognize a that legislation is unnecessary to enable courts
16

to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the
protection of property.   The same treatment is accorded to constitutional provisions forbidding the
17

taking or damaging of property for public use without just compensation. 18

Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect.   Accordingly, we have held that the provisions in Article
19

II of our Constitution entitled "Declaration of Principles and State Policies" should generally be
construed as mere statements of principles of the State.   We have also ruled that some provisions
20

of Article XIII on "Social Justice and Human Rights,"   and Article XIV on "Education Science and
21

Technology, Arts, Culture end Sports"   cannot be the basis of judicially enforceable rights. Their
22

enforcement is addressed to the discretion of Congress though they provide the framework for
legislation   to effectuate their policy content. 
23 24

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
 corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.

The first paragraph directs Congress to reserve certain areas of investments in the
country   to
25
Filipino citizens or to corporations sixty per
cent   of whose capital stock is owned by Filipinos. It further commands Congress to enact
26

laws that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution.   The provision
27

in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez,   where we upheld the discretionary authority of Congress to Filipinize certain
28

areas of investments.   By reenacting the 1973 provision, the first paragraph of section 10
29

affirmed the power of Congress to nationalize certain areas of investments in favor of

Filipinos.

The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.

This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles

and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.

The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race.   By this yardstick, the sale of Manila Hotel falls within the coverage of
30

the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights
involving our national patrimony. The unique value of the Manila Hotel to our history and culture
cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As
chronicled by Beth Day Romulo,   the hotel first opened on July 4, 1912 as a first-class hotel built by
31

the American Insular Government for Americans living in, or passing through, Manila while traveling
to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For
sometime, it was exclusively used by American and Caucasian travelers and served as the "official
guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began
coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied
Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It
was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of
Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and
kings, premiers and potentates, as well as glamorous international film and sports celebrities were
housed in the Hotel. It was also the situs of international conventions and conferences. In the local
scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel
has reaped and continues reaping numerous recognitions and awards from international hotel and
travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are
judicially cognizable facts which cannot be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property.   Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its
32

reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987
Constitution. To be sure, the law does not equate cultural treasure and cultural property as
synonymous to the phrase "patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government.   The funds are held in trust for a distinct purpose which cannot be disposed of
33

indifferently.   They are to be used to finance the retirement, disability and life insurance benefits of
34

the employees and the administrative and operational expenses of the GSIS,   Excess funds,
35

however, are allowed to be invested in business and other ventures for the benefit of the
employees.  It is thus contended that the GSIS investment in the Manila Hotel Corporation is a
36

simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of
Article XII of the Constitution.

The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission   and the Commission on Audit.   As
37 38

state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people
elevated as a constitutional command.

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.

Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

x x x           x x x          x x x

THE PRESIDENT. What is the suggestion of

Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO

QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?

MR. NOLLEDO. Madam President, I think that is

understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO

QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.

MR. NOLLEDO. Madam President, that was the

intention of the proponents. The committee has
accepted the amendment.

x x x           x x x          x x x

As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad.  39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.

With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.

In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata — first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.

To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.

It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.

We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition.

Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add

1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of
rights . . . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.

The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.

It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos.1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air.  study of the 1935 Constitution, where the concept of "national
2

patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not
only their natural resources of the country but practically everything that belongs to the Filipino
people, the tangible and the material as well as the intangible and the spiritual assets and
possessions of the people. It is to be noted that the framers did not stop with conservation. They
knew that conservation alone does not spell progress; and that this may be achieved only through
development as a correlative factor to assure to the people not only the exclusive ownership, but
also the exclusive benefits of their national patrimony).3
Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others.
5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment"  To quote further: "Let not our children
6

be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances".7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must

refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to
the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or
equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the
qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be
made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an
opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the
qualified Filipino bidder is to be significant at all.

It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.

VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos"  is self-executory. The provision verily does not need, although it can obviously be
1

amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.

On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.

All told, I am constrained to vote for granting the petition.

MENDOZA, J., concurring in the judgment:

I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos"  is to allow petitioner Philippine
1

corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession
given by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"  so that petitioner bid for more shares, it would be
2

preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest
bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner
but by allowing it "to match the highest bid in terms of price per share" before it is awarded the
shares of stocks.  That, to me, is what "preference to qualified Filipinos" means in the context of this
3

case — by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.

This was the meaning given in Co Chiong v. Cuaderno  to a 1947 statute giving "preference to
4

Filipino citizens in the lease of public market stalls."  This Court upheld the cancellation of existing
5

leases covering market stalls occupied by persons who were not Filipinos and the award thereafter
of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly,
in Vda. de Salgado v. De la Fuente,  this Court sustained the validity of a municipal ordinance
6

passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and
granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the
stalls. In Chua Lao v. Raymundo,  the preference granted under the statute was held to apply to
7
cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public
markets even if there were available other stalls as good as those occupied by aliens. "The law,
apparently, is applicable whenever there is a conflict of interest between Filipino applicants and
aliens for lease of stalls in public markets, in which situation the right to preference immediately
arises."
8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing.  Indeed, in vital areas of our national economy, there are
9

situations in which the only way to place Filipinos in control of the national economy as contemplated
in the Constitution   is to give them preferential treatment where they can at least stand on equal
10

footing with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst,   but with the sale of
11

government property, which is like the grant of government largess of benefits and concessions
covering the national economy" and therefore no one should begrudge us if we give preferential
treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is
a business owned by the Government. It is being privatized. Privatization should result in the
relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not
in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process.   It is only the result of the public bidding that
12

is sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares).   Bids below the minimum will not be considered. On the other
13

hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will
not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to
those who have "validly submitted bids."   The suggestion is, to say the least, fanciful and has no
14

basis in fact.

For the foregoing reasons, I vote to grant the petition.

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."

I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain —

The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).

Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:

x x x           x x x          x x x

MR. NOLLEDO. The Amendment will read: "IN THE

GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).

MR. MONSOD. We also wanted to add, as

Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:

MR. NOLLEDO. In the grant of rights, privileges and

concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.

MR. FOZ. In connection with that amendment, if a

foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
 MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some

aspects than the Filipino enterprise, will the Filipino
still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,

Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said —

The nationalistic tendency is manifested in various provisions of the Constitution. . . .

It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.

As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be
placed in the auction block of a purely business transaction, where profits subverts the cherished
historical values of our people.

As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."

Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.

I remember, however, a Spanish proverb which says — "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.

I vote GRANT the petition.

PUNO, J., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel"  The proposal was approved by respondent Committee on Privatization.
1

In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:

First — Pass the prequalification process;

Second — Submit the highest bid on a price per share basis for the Block of Shares;

Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;

xxx xxx xxx

IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide

management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
 a. Proven management .expertise in the hotel
industry; or

b. Significant equity ownership (i.e. board

representation) in another hotel company; or

c. Overall management and marketing expertise to

successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide

access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.

xxx xxx xxx

D. PREQUALIFICATION DOCUMENTS

xxx xxx xxx

E. APPLICATION PROCEDURE

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration

Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:

a. Guidelines and Procedures: Second

Prequalification and Public Bidding of the MHC
Privatization

b. Confidential Information Memorandum: The Manila

Hotel Corporation

c. Letter of Invitation. to the Prequalification and

Bidding Conference

xxx xxx xxx

4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at The Manila

Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

 The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS

1. The Applicant will be evaluated by the PBAC with

the assistance of the TEC based on the Information
Package and other information available to the PBAC.

2. If the Applicant is a Consortium/Joint Venture, the

evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.

3. The decision of the PBAC with respect to the

results of the PBAC evaluation will be final.

4. The Applicant shall be evaluated according to the

criteria set forth below:

a. Business management expertise,

track record, and experience

b. Financial capability.

c. Feasibility and acceptability of the

proposed strategic plan for the Manila
Hotel

5. The PBAC will shortlist such number of Applicants as it may deem

appropriate.

6. The parties that prequalified in the first MHC public bidding — ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton — may participate in
the Public Bidding without having to undergo the prequalification
process again.

G. SHORTLIST OF QUALIFIED BIDDERS

1. A notice of prequalification results containing the shortlist of

Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.

2. In the case of a Consortium/Joint Venture, the withdrawal by

member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.

V. GUIDELINES FOR THE PUBLIC BIDDING

 A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to

participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three Hundred

Thousand (15,300,000) shares of stock representing Thirty Percent
to Fifty-One Percent (30%-51%) of the issued and outstanding shares
of MHC, will be offered in the Public Bidding by the GSIS. The
Qualified Bidders will have the Option of determining the number of
shares within the range to bid for. The range is intended to attract
bidders with different preferences and objectives for the operation
and management of The Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum

bid required on a price per share basis for the Block of Shares is
Thirty-Six Pesos and Sixty-Seven Centavos (P36.67).

2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the

minimum required will not considered.

D. TRANSFER COSTS

x x x           x x x          x x x

E. OFFICIAL BID FORM

1. Bids must be contained in the prescribed Official Bid Form, a copy

of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.

2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be

submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH).

 If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of

the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.

2. BID SECURITY

a. The Qualified Bidder should deposit Thirty-Three Million Pesos

(P33,000,00), in Philippine currency as Bid Security in the form of:

i. Manager's check or unconditional demand draft

payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or

ii. Standby-by letter of credit issued by a reputable

banking institution acceptable to the GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have Bid Security; or

ii. The Bid Security accompanying the bid is for less

than the required amount.

c. If the Bid Security is in the form of a manager's check or

unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.

d. If the Qualified Bidder becomes the winning Bidder/Strategic

Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned

immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.

f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement

with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price

not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for

any other reason.

G. SUBMISSION OF BIDS

1. The Public Bidding will be held on September 7, 1995 at the

following location:

New GSIS Headquarters Building

Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public Bidding

to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.

3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."

4. The Qualified Bidder should submit the following documents

in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"

a. Written Authority Bid

b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and

"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.

6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.

H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at

3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.

3. Immediately following the reading of the bids, the PBAC will

formally announce the highest bid and the Highest Bidder.

4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.

5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed

period; or

b. There is only one (1) bid that is submitted and

acceptable to the PBAC.

I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC

1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute

with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
 b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management

Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of gross

revenues.(1)

b. Incentive fee: Maximum of 8.0% of gross operating

profit(1) after deducting undistributed overhead
expenses and the basic management fee.

c. Fixed component of the international

marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters for

the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.

A Qualified Bidder envisioning a Management Contract for The

Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will be

in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC

PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:

a. Execution of the necessary contract with

GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and

COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the

Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.

2. All payments should be made in the form of a Manager's Check or

unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.

M. GENERAL CONDITIONS

1. The GSIS unconditionally reserves the right to reject any or all

applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.

2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.

3. The GSIS reserves the right to reset the date of the

prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it

has on the Block of Shares.

5. All documents and materials submitted by the Qualified Bidders,

except the Bid Security, may be returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public

Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
 7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.

On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.

Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.

Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution  on
4

the "National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

xxx xxx xxx

The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;

(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the

controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;

(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;

(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.  As a rule, its provisions are deemed self-executing and can be enforced without further
5

legislative action.  Some of its provisions, however, can be implemented only through appropriate
6

laws enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.

The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement.  The inquiry demands a micro-analysis of the text and the context of the provision in
7

question.8

Courts as a rule consider the provisions of the Constitution as self-executing,  rather than as 9

requiring future legislation for their enforcement.   The reason is not difficult to discern. For if they
10

are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign
people can be easily ignored and nullified by Congress.   Suffused with wisdom of the ages is the
11

unyielding rule that legislative actions may give breath to constitutional rights but congressional in
action should not suffocate them.  12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures,   the rights of a person under custodial investigation,   the rights of an accused,   and the
13 14 15

privilege against self-incrimination,   It is recognize a that legislation is unnecessary to enable courts
16

to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the
protection of property.   The same treatment is accorded to constitutional provisions forbidding the
17

taking or damaging of property for public use without just compensation. 18

Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect.   Accordingly, we have held that the provisions in Article
19

II of our Constitution entitled "Declaration of Principles and State Policies" should generally be
construed as mere statements of principles of the State.   We have also ruled that some provisions
20

of Article XIII on "Social Justice and Human Rights,"   and Article XIV on "Education Science and
21

Technology, Arts, Culture end Sports"   cannot be the basis of judicially enforceable rights. Their
22

enforcement is addressed to the discretion of Congress though they provide the framework for
legislation   to effectuate their policy content. 
23 24

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
 The first paragraph directs Congress to reserve certain areas of investments in the
country   to
25
Filipino citizens or to corporations sixty per
cent   of whose capital stock is owned by Filipinos. It further commands Congress to enact
26

laws that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution.   The provision
27

in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez,   where we upheld the discretionary authority of Congress to Filipinize certain
28

areas of investments.   By reenacting the 1973 provision, the first paragraph of section 10
29

affirmed the power of Congress to nationalize certain areas of investments in favor of

Filipinos.

The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.

This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles

and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.

The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race.   By this yardstick, the sale of Manila Hotel falls within the coverage of
30

the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights
involving our national patrimony. The unique value of the Manila Hotel to our history and culture
cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As
chronicled by Beth Day Romulo,   the hotel first opened on July 4, 1912 as a first-class hotel built by
31

the American Insular Government for Americans living in, or passing through, Manila while traveling
to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For
sometime, it was exclusively used by American and Caucasian travelers and served as the "official
guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began
coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied
Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It
was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of
Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and
kings, premiers and potentates, as well as glamorous international film and sports celebrities were
housed in the Hotel. It was also the situs of international conventions and conferences. In the local
scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel
has reaped and continues reaping numerous recognitions and awards from international hotel and
travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are
judicially cognizable facts which cannot be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property.   Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its
32

reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987
Constitution. To be sure, the law does not equate cultural treasure and cultural property as
synonymous to the phrase "patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government.   The funds are held in trust for a distinct purpose which cannot be disposed of
33

indifferently.   They are to be used to finance the retirement, disability and life insurance benefits of
34

the employees and the administrative and operational expenses of the GSIS,   Excess funds, 35

however, are allowed to be invested in business and other ventures for the benefit of the
employees.  It is thus contended that the GSIS investment in the Manila Hotel Corporation is a
36

simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of
Article XII of the Constitution.

The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission   and the Commission on Audit.   As
37 38

state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people
elevated as a constitutional command.

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.

Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

x x x           x x x          x x x

THE PRESIDENT. What is the suggestion of

Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
 MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?

MR. NOLLEDO. Madam President, I think that is

understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO

QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.

MR. NOLLEDO. Madam President, that was the

intention of the proponents. The committee has
accepted the amendment.

x x x           x x x          x x x

As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad.  39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.

With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.

In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata — first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.

To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.

It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.

We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition.

Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add

1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of
rights . . . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.

2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.

2. G.R. No. 161872             April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17,
2003. Respondent Commission on Elections (COMELEC) refused to give due course to
petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The
decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol
K. Sadain voted to include petitioner as they believed he had parties or movements to back up his
candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No.

6558. Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioner’s Motion for Reconsideration and on similar motions filed by other
aspirants for national elective positions, denied the same under the aegis of Omnibus Resolution
No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-five (35) others
nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a
political party or are not supported by a registered political party with a national constituency.
Commissioner Sadain maintained his vote for petitioner. By then, Commissioner Tancangco had
retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly
rendered in violation of his right to "equal access to opportunities for public service" under Section
26, Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a
nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the
COMELEC indirectly amended the constitutional provisions on the electoral process and limited the
power of the sovereign people to choose their leaders. The COMELEC supposedly erred in
disqualifying him since he is the most qualified among all the presidential candidates, i.e., he
possesses all the constitutional and legal qualifications for the office of the president, he is capable
of waging a national campaign since he has numerous national organizations under his leadership,
he also has the capacity to wage an international campaign since he has practiced law in other
countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for
the Certificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not
provide clear and reasonable guidelines for determining the qualifications of candidates since it does
not ask for the candidate’s bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access to
opportunities for public office" is the claim that there is a constitutional right to run for or hold public
office and, particularly in his case, to seek the presidency. There is none. What is recognized is
merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution
neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is
nothing in the plain language of the provision which suggests such a thrust or justifies an
interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration
of Principles and State Policies." The provisions under the Article are generally considered not self-
executing,2 and there is no plausible reason for according a different treatment to the "equal access"
provision. Like the rest of the policies enumerated in Article II, the provision does not contain any
judicially enforceable constitutional right but merely specifies a guideline for legislative or executive
action.3 The disregard of the provision does not give rise to any cause of action before the courts. 4

An inquiry into the intent of the framers 5 produces the same determination that the provision is not
self-executory. The original wording of the present Section 26, Article II had read, "The State shall
broaden opportunities to public office and prohibit public dynasties." 6 Commissioner (now Chief
Justice) Hilario Davide, Jr. successfully brought forth an amendment that changed the word
"broaden" to the phrase "ensure equal access," and the substitution of the word "office" to "service."
He explained his proposal in this wise:

I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important
would be equal access to the opportunity. If you broaden, it would necessarily mean that
the government would be mandated to create as many offices as are possible to
accommodate as many people as are also possible. That is the meaning of broadening
opportunities to public service. So, in order that we should not mandate the State to
make the government the number one employer and to limit offices only to what may
be necessary and expedient yet offering equal opportunities to access to it, I change
the word "broaden."7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that would
accommodate as many people as possible into public office. The approval of the "Davide
amendment" indicates the design of the framers to cast the provision as simply enunciatory of a
desired policy objective and not reflective of the imposition of a clear State burden.

Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of
positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its
effective means and reach are not properly defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be entirely open-ended. 8 Words and phrases such as "equal
access," "opportunities," and "public service" are susceptible to countless interpretations owing to
their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people
an operative but amorphous foundation from which innately unenforceable rights may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the privilege to seek elective office are found in the
provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No.
645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu
proprio refuse to give due course to or cancel a Certificate of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the equal
access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the
limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the
case at bar, there is no showing that any person is exempt from the limitations or the burdens which
they create.

Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the
Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their
presumed validity stands and has to be accorded due weight.

Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of the
Constitution is misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of
candidates who have not evinced a bona fide intention to run for office is easy to divine. The State
has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly.
Towards this end, the State takes into account the practical considerations in conducting elections.
Inevitably, the greater the number of candidates, the greater the opportunities for logistical
confusion, not to mention the increased allocation of time and resources in preparation for the
election. These practical difficulties should, of course, never exempt the State from the conduct of a
mandated electoral exercise. At the same time, remedial actions should be available to alleviate
these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not
merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions.
As the United States Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a

significant modicum of support before printing the name of a political organization and its
candidates on the ballot – the interest, if no other, in avoiding confusion, deception and even
frustration of the democratic [process].11

The COMELEC itself recognized these practical considerations when it promulgated Resolution No.
6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11
January 2004. As observed in the COMELEC’s Comment:
 There is a need to limit the number of candidates especially in the case of candidates for
national positions because the election process becomes a mockery even if those who
cannot clearly wage a national campaign are allowed to run. Their names would have to be
printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots.
These would entail additional costs to the government. For the official ballots in automated
counting and canvassing of votes, an additional page would amount to more or less FOUR
HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).

xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage
a decent campaign enough to project the prospect of winning, no matter how slim. 12

The preparation of ballots is but one aspect that would be affected by allowance of "nuisance
candidates" to run in the elections. Our election laws provide various entitlements for candidates for
public office, such as watchers in every polling place, 13 watchers in the board of canvassers, 14 or
even the receipt of electoral contributions. 15 Moreover, there are election rules and regulations the
formulations of which are dependent on the number of candidates in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even more
galling. The organization of an election with bona fide candidates standing is onerous enough. To
add into the mix candidates with no serious intentions or capabilities to run a viable campaign would
actually impair the electoral process. This is not to mention the candidacies which are palpably
ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae
covering every step of the electoral process, most probably posed at the instance of these nuisance
candidates. It would be a senseless sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the State could exclude
nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on
gossamer wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling
State interest to ensure orderly and credible elections by excising impediments thereto, such as
nuisance candidacies that distract and detract from the larger purpose. The COMELEC is mandated
by the Constitution with the administration of elections 16 and endowed with considerable latitude in
adopting means and methods that will ensure the promotion of free, orderly and honest
elections.17 Moreover, the Constitution guarantees that only bona fide candidates for public office
shall be free from any form of harassment and discrimination. 18 The determination of bona
fide candidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in
the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application in the case
of the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it.
The assailed resolutions of the COMELEC do not direct the Court to the evidence which it
considered in determining that petitioner was a nuisance candidate. This precludes the Court from
reviewing at this instance whether the COMELEC committed grave abuse of discretion in
disqualifying petitioner, since such a review would necessarily take into account the matters which
the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing
his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts,
can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor
the Solicitor General appended any document to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The
basis of the factual determination is not before this Court. Thus, the remand of this case for the
reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in the
government. It deserves not a cursory treatment but a hearing which conforms to the requirements
of due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it to say
that the form strictly complies with Section 74 of the Omnibus Election Code. This provision
specifically enumerates what a certificate of candidacy should contain, with the required information
tending to show that the candidate possesses the minimum qualifications for the position aspired for
as established by the Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to
the COMELEC for the reception of further evidence, to determine the question on whether petitioner
Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus
Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report its findings to
this Court with deliberate dispatch.

SO ORDERED.

B.4 Hierarchy of Constitutionally protected Rights (Preferred rights): CASES

1. G.R. No. L-24693             July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR
INC. and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.

Panganiban, Abad and Associates Law Office for respondent-appellant.

J. M. Aruego, Tenchavez and Associates for intervenor-appellee.

FERNANDO, J.:

The principal question in this appeal from a judgment of the lower court in an action for prohibition is
whether Ordinance No. 4760 of the City of Manila is violative of the due process clause. The lower
court held that it is and adjudged it "unconstitutional, and, therefore, null and void." For reasons to be
more specifically set forth, such judgment must be reversed, there being a failure of the requisite
showing to sustain an attack against its validity.

The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners,
Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel del Mar Inc., and a
certain Go Chiu, who is "the president and general manager of the second petitioner" against the
respondent Mayor of the City of Manila who was sued in his capacity as such "charged with the
general power and duty to enforce ordinances of the City of Manila and to give the necessary orders
for the faithful execution and enforcement of such ordinances." (par. 1). It was alleged that the
petitioner non-stock corporation is dedicated to the promotion and protection of the interest of its
eighteen (18) members "operating hotels and motels, characterized as legitimate businesses duly
licensed by both national and city authorities, regularly paying taxes, employing and giving livelihood
to not less than 2,500 person and representing an investment of more than P3 million." 1 (par. 2). It
was then alleged that on June 13, 1963, the Municipal Board of the City of Manila enacted
Ordinance No. 4760, approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who
was at the time acting as Mayor of the City of Manila. (par. 3).

After which the alleged grievances against the ordinance were set forth in detail. There was the
assertion of its being beyond the powers of the Municipal Board of the City of Manila to enact insofar
as it would regulate motels, on the ground that in the revised charter of the City of Manila or in any
other law, no reference is made to motels; that Section 1 of the challenged ordinance is
unconstitutional and void for being unreasonable and violative of due process insofar as it would
impose P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels; that
the provision in the same section which would require the owner, manager, keeper or duly
authorized representative of a hotel, motel, or lodging house to refrain from entertaining or accepting
any guest or customer or letting any room or other quarter to any person or persons without his filling
up the prescribed form in a lobby open to public view at all times and in his presence, wherein the
surname, given name and middle name, the date of birth, the address, the occupation, the sex, the
nationality, the length of stay and the number of companions in the room, if any, with the name,
relationship, age and sex would be specified, with data furnished as to his residence certificate as
well as his passport number, if any, coupled with a certification that a person signing such form has
personally filled it up and affixed his signature in the presence of such owner, manager, keeper or
duly authorized representative, with such registration forms and records kept and bound together, it
also being provided that the premises and facilities of such hotels, motels and lodging houses would
be open for inspection either by the City Mayor, or the Chief of Police, or their duly authorized
representatives is unconstitutional and void again on due process grounds, not only for being
arbitrary, unreasonable or oppressive but also for being vague, indefinite and uncertain, and likewise
for the alleged invasion of the right to privacy and the guaranty against self-incrimination; that
Section 2 of the challenged ordinance classifying motels into two classes and requiring the
maintenance of certain minimum facilities in first class motels such as a telephone in each room, a
dining room or, restaurant and laundry similarly offends against the due process clause for being
arbitrary, unreasonable and oppressive, a conclusion which applies to the portion of the ordinance
requiring second class motels to have a dining room; that the provision of Section 2 of the
challenged ordinance prohibiting a person less than 18 years old from being accepted in such
hotels, motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful
guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of
such establishments to lease any room or portion thereof more than twice every 24 hours, runs
counter to the due process guaranty for lack of certainty and for its unreasonable, arbitrary and
oppressive character; and that insofar as the penalty provided for in Section 4 of the challenged
ordinance for a subsequent conviction would, cause the automatic cancellation of the license of the
offended party, in effect causing the destruction of the business and loss of its investments, there is
once again a transgression of the due process clause.

There was a plea for the issuance of preliminary injunction and for a final judgment declaring the
above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued a writ of
preliminary injunction ordering respondent Mayor to refrain from enforcing said Ordinance No. 4760
from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal circumstances
regarding the respondent Mayor and of the fact that petitioners are licensed to engage in the hotel or
motel business in the City of Manila, of the provisions of the cited Ordinance but a denial of its
alleged nullity, whether on statutory or constitutional grounds. After setting forth that the petition did
fail to state a cause of action and that the challenged ordinance bears a reasonable relation, to a
proper purpose, which is to curb immorality, a valid and proper exercise of the police power and that
only the guests or customers not before the court could complain of the alleged invasion of the right
to privacy and the guaranty against self incrimination, with the assertion that the issuance of the
preliminary injunction ex parte was contrary to law, respondent Mayor prayed for, its dissolution and
the dismissal of the petition.

Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated
September 28, 1964, which reads:

1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel
del Mar Inc. are duly organized and existing under the laws of the Philippines, both with
offices in the City of Manila, while the petitioner Go Chin is the president and general
manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident of Baguio
City, all having the capacity to sue and be sued;

2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief
executive of the City of Manila charged with the general power and duty to enforce
ordinances of the City of Manila and to give the necessary orders for the faithful execution
and enforcement of such ordinances;

3. That the petitioners are duly licensed to engage in the business of operating hotels and
motels in Malate and Ermita districts in Manila;

4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No.
4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the
acting City Mayor of Manila, in the absence of the respondent regular City Mayor, amending
sections 661, 662, 668-a, 668-b and 669 of the compilation of the ordinances of the City of
Manila besides inserting therein three new sections. This ordinance is similar to the one
vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th Indorsement
dated February 15, 1963 (Annex B);

5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with
the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of which is
attached hereto as Annex C;

6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license
fees paid by the 105 hotels and motels (including herein petitioners) operating in the City of
Manila.1äwphï1.ñët

Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on
the presumption of the validity of the challenged ordinance, the burden of showing its lack of
conformity to the Constitution resting on the party who assails it, citing not only  U.S. v. Salaveria, but
likewise applicable American authorities. Such a memorandum likewise refuted point by point the
arguments advanced by petitioners against its validity. Then barely two weeks later, on February 4,
1965, the memorandum for petitioners was filed reiterating in detail what was set forth in the petition,
with citations of what they considered to be applicable American authorities and praying for a
judgment declaring the challenged ordinance "null and void and unenforceable" and making
permanent the writ of preliminary injunction issued.

After referring to the motels and hotels, which are members of the petitioners association, and
referring to the alleged constitutional questions raised by the party, the lower court observed: "The
only remaining issue here being purely a question of law, the parties, with the nod of the Court,
agreed to file memoranda and thereafter, to submit the case for decision of the Court." It does
appear obvious then that without any evidence submitted by the parties, the decision passed upon
the alleged infirmity on constitutional grounds of the challenged ordinance, dismissing as is
undoubtedly right and proper the untenable objection on the alleged lack of authority of the City of
Manila to regulate motels, and came to the conclusion that "the challenged Ordinance No. 4760 of
the City of Manila, would be unconstitutional and, therefore, null and void." It made permanent the
preliminary injunction issued against respondent Mayor and his agents "to restrain him from
enforcing the ordinance in question." Hence this appeal.

As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines
of a fundamental character ought to have admonished the lower court against such a sweeping
condemnation of the challenged ordinance. Its decision cannot be allowed to stand, consistently with
what has hitherto been the accepted standards of constitutional adjudication, in both procedural and
substantive aspects.

Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the
presumption of validity that attaches to a challenged statute or ordinance. As was expressed
categorically by Justice Malcolm: "The presumption is all in favor of validity x x x . The action of the
elected representatives of the people cannot be lightly set aside. The councilors must, in the very
nature of things, be familiar with the necessities of their particular municipality and with all the facts
and circumstances which surround the subject and necessitate action. The local legislative body, by
enacting the ordinance, has in effect given notice that the regulations are essential to the well being
of the people x x x . The Judiciary should not lightly set aside legislative action when there is not a
clear invasion of personal or property rights under the guise of police regulation. 2

It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence
to rebut it is unavoidable, unless the statute or ordinance is void on its face which is not the case
here. The principle has been nowhere better expressed than in the leading case of O'Gorman &
Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court through Justice Brandeis
tersely and succinctly summed up the matter thus: The statute here questioned deals with a subject
clearly within the scope of the police power. We are asked to declare it void on the ground that the
specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due
process of law. As underlying questions of fact may condition the constitutionality of legislation of
this character, the resumption of constitutionality must prevail in the absence of some factual
foundation of record for overthrowing the statute." No such factual foundation being laid in the
present case, the lower court deciding the matter on the pleadings and the stipulation of facts, the
presumption of validity must prevail and the judgment against the ordinance set aside.

Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being
repugnant to the due process clause of the Constitution. The mantle of protection associated with
the due process guaranty does not cover petitioners. This particular manifestation of a police power
measure being specifically aimed to safeguard public morals is immune from such imputation of
nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise
would be to unduly restrict and narrow the scope of police power which has been properly
characterized as the most essential, insistent and the least limitable of powers, 4 extending as it does
"to all the great public needs."5 It would be, to paraphrase another leading decision, to destroy the
very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to
promote public health, public morals, public safety and the genera welfare. 6 Negatively put, police
power is "that inherent and plenary power in the State which enables it to prohibit all that is hurt full
to the comfort, safety, and welfare of society.7

There is no question but that the challenged ordinance was precisely enacted to minimize certain
practices hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included
as annex to the stipulation of facts, speaks of the alarming increase in the rate of prostitution,
adultery and fornication in Manila traceable in great part to the existence of motels, which "provide a
necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven
for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine
harboring of transients and guests of these establishments by requiring these transients and guests
to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and
by introducing several other amendatory provisions calculated to shatter the privacy that
characterizes the registration of transients and guests." Moreover, the increase in the licensed fees
was intended to discourage "establishments of the kind from operating for purpose other than legal"
and at the same time, to increase "the income of the city government." It would appear therefore that
the stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues
eloquently for it.

It is a fact worth noting that this Court has invariably stamped with the seal of its approval,
ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant; 8 provide a license
tax for and regulating the maintenance or operation of public dance halls; 9 prohibiting
gambling;10 prohibiting jueteng;11 and monte;12 prohibiting playing of panguingui on days other than
Sundays or legal holidays; 13 prohibiting the operation of pinball machines; 14 and prohibiting any
person from keeping, conducting or maintaining an opium joint or visiting a place where opium is
smoked or otherwise used,15 all of which are intended to protect public morals.

On the legislative organs of the government, whether national or local, primarily rest the exercise of
the police power, which, it cannot be too often emphasized, is the power to prescribe regulations to
promote the health, morals, peace, good order, safety and general welfare of the people. In view of
the requirements of due process, equal protection and other applicable constitutional guaranties
however, the exercise of such police power insofar as it may affect the life, liberty or property of any
person is subject to judicial inquiry. Where such exercise of police power may be considered as
either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any
other applicable constitutional guaranty may call for correction by the courts.

We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the
question of due process. 16 There is no controlling and precise definition of due process. It furnishes
though a standard to which the governmental action should conform in order that deprivation of life,
liberty or property, in each appropriate case, be valid. What then is the standard of due process
which must exist both as a procedural and a substantive requisite to free the challenged ordinance,
or any governmental action for that matter, from the imputation of legal infirmity sufficient to spell its
doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice.
Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process
requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result
in sheer oppression. Due process is thus hostile to any official action marred by lack of
reasonableness. Correctly it has been identified as freedom from arbitrariness. It is the embodiment
of the sporting idea of fair play.17 It exacts fealty "to those strivings for justice" and judges the act of
officialdom of whatever branch "in the light of reason drawn from considerations of fairness that
reflect [democratic] traditions of legal and political thought." 18 It is not a narrow or "technical
conception with fixed content unrelated to time, place and circumstances," 19 decisions based on such
a clause requiring a "close and perceptive inquiry into fundamental principles of our
society."20 Questions of due process are not to be treated narrowly or pedantically in slavery to form
or phrases.21

It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a
municipal lawmaking body considers an evil of rather serious proportion an arbitrary and capricious
exercise of authority. It would seem that what should be deemed unreasonable and what would
amount to an abdication of the power to govern is inaction in the face of an admitted deterioration of
the state of public morals. To be more specific, the Municipal Board of the City of Manila felt the
need for a remedial measure. It provided it with the enactment of the challenged ordinance. A strong
case must be found in the records, and, as has been set forth, none is even attempted here to attach
to an ordinance of such character the taint of nullity for an alleged failure to meet the due process
requirement. Nor does it lend any semblance even of deceptive plausibility to petitioners' indictment
of Ordinance No. 4760 on due process grounds to single out such features as the increased fees for
motels and hotels, the curtailment of the area of freedom to contract, and, in certain particulars, its
alleged vagueness.

Admittedly there was a decided increase of the annual license fees provided for by the challenged
ordinance for hotels and motels, 150% for the former and over 200% for the latter, first-class motels
being required to pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has been the
settled law however, as far back as 1922 that municipal license fees could be classified into those
imposed for regulating occupations or regular enterprises, for the regulation or restriction of non-
useful occupations or enterprises and for revenue purposes only. 22 As was explained more in detail
in the above Cu Unjieng case: (2) Licenses for non-useful occupations are also incidental to the
police power and the right to exact a fee may be implied from the power to license and regulate, but
in fixing amount of the license fees the municipal corporations are allowed a much wider discretion in
this class of cases than in the former, and aside from applying the well-known legal principle that
municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general
rule, declined to interfere with such discretion. The desirability of imposing restraint upon the number
of persons who might otherwise engage in non-useful enterprises is, of course, generally an
important factor in the determination of the amount of this kind of license fee. Hence license fees
clearly in the nature of privilege taxes for revenue have frequently been upheld, especially in of
licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been declared
unreasonable.23

Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier
announced by the American Supreme Court that taxation may be made to implement the state's
police power. Only the other day, this Court had occasion to affirm that the broad taxing authority
conferred by the Local Autonomy Act of 1959 to cities and municipalities is sufficiently plenary to
cover a wide range of subjects with the only limitation that the tax so levied is for public purposes,
just and uniform.25

As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in
imposing licenses for revenue, it has been explicitly held in one case that "much discretion is given
to municipal corporations in determining the amount," here the license fee of the operator of a
massage clinic, even if it were viewed purely as a police power measure. 26 The discussion of this
particular matter may fitly close with this pertinent citation from another decision of significance: "It is
urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance could deprive them
of their lawful occupation and means of livelihood because they can not rent stalls in the public
markets. But it appears that plaintiffs are also dealers in refrigerated or cold storage meat, the sale
of which outside the city markets under certain conditions is permitted x x x . And surely, the mere
fact, that some individuals in the community may be deprived of their present business or a
particular mode of earning a living cannot prevent the exercise of the police power. As was said in a
case, persons licensed to pursue occupations which may in the public need and interest be affected
by the exercise of the police power embark in these occupations subject to the disadvantages which
may result from the legal exercise of that power."27

Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it
unlawful for the owner, manager, keeper or duly authorized representative of any hotel, motel,
lodging house, tavern, common inn or the like, to lease or rent room or portion thereof more than
twice every 24 hours, with a proviso that in all cases full payment shall be charged, call for a different
conclusion. Again, such a limitation cannot be viewed as a transgression against the command of
due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the
opportunity for the immoral or illegitimate use to which such premises could be, and, according to
the explanatory note, are being devoted. How could it then be arbitrary or oppressive when there
appears a correspondence between the undeniable existence of an undesirable situation and the
legislative attempt at correction. Moreover, petitioners cannot be unaware that every regulation of
conduct amounts to curtailment of liberty which as pointed out by Justice Malcolm cannot be
absolute. Thus: "One thought which runs through all these different conceptions of liberty is plainly
apparent. It is this: 'Liberty' as understood in democracies, is not license; it is 'liberty regulated by
law.' Implied in the term is restraint by law for the good of the individual and for the greater good of
the peace and order of society and the general well-being. No man can do exactly as he pleases.
Every man must renounce unbridled license. The right of the individual is necessarily subject to
reasonable restraint by general law for the common good x x x The liberty of the citizen may be
restrained in the interest of the public health, or of the public order and safety, or otherwise within the
proper scope of the police power." 28

A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the
enactment of said law, and the state in order to promote the general welfare may interfere with
personal liberty, with property, and with business and occupations. Persons and property may be
subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and
prosperity of the state x x x To this fundamental aim of our Government the rights of the individual
are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made
to prevail over authority because then society will fall into anarchy. Neither should authority be made
to prevail over liberty because then the individual will fall into slavery. The citizen should achieve the
required balance of liberty and authority in his mind through education and personal discipline, so
that there may be established the resultant equilibrium, which means peace and order and
happiness for all.29

It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation
of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. The
policy of laissez faire has to some extent given way to the assumption by the government of the right
of intervention even in contractual relations affected with public interest. 31 What may be stressed
sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the
validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed
affects at the most rights of property, the permissible scope of regulatory measure is wider. 32 How
justify then the allegation of a denial of due process?

Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the
principles of vagueness or uncertainty. It would appear from a recital in the petition itself that what
seems to be the gravamen of the alleged grievance is that the provisions are too detailed and
specific rather than vague or uncertain. Petitioners, however, point to the requirement that a guest
should give the name, relationship, age and sex of the companion or companions as indefinite and
uncertain in view of the necessity for determining whether the companion or companions referred to
are those arriving with the customer or guest at the time of the registry or entering the room With him
at about the same time or coming at any indefinite time later to join him; a proviso in one of its
sections which cast doubt as to whether the maintenance of a restaurant in a motel is dependent
upon the discretion of its owners or operators; another proviso which from their standpoint would
require a guess as to whether the "full rate of payment" to be charged for every such lease thereof
means a full day's or merely a half-day's rate. It may be asked, do these allegations suffice to render
the ordinance void on its face for alleged vagueness or uncertainty? To ask the question is to
answer it. From Connally v. General Construction Co.33 to Adderley v. Florida,34 the principle has
been consistently upheld that what makes a statute susceptible to such a charge is an enactment
either forbidding or requiring the doing of an act that men of common intelligence must necessarily
guess at its meaning and differ as to its application. Is this the situation before us? A citation from
Justice Holmes would prove illuminating: "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

That is all then that this case presents. As it stands, with all due allowance for the arguments
pressed with such vigor and determination, the attack against the validity of the challenged
ordinance cannot be considered a success. Far from it. Respect for constitutional law principles so
uniformly held and so uninterruptedly adhered to by this Court compels a reversal of the appealed
decision.

Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With
costs.

2. G.R. No. L-31195 June 5, 1973

PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO,

FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION PACIENTE,
BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.

L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.

Demetrio B. Salem & Associates for private respondent.

MAKASIAR, J.:

The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as PBMEO)
is a legitimate labor union composed of the employees of the respondent Philippine Blooming Mills
Co., Inc., and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon,
Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and
members of the petitioner Union.

Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacañang
on March 4, 1969, in protest against alleged abuses of the Pasig police, to be participated in by the
workers in the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third shifts
(from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the
respondent Company of their proposed demonstration.

The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of the
respondent Court reproduced the following stipulation of facts of the parties — parties —

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacañang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM-2:00 PM) workers as well as
those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in
the morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur
L. Ang (2) Atty. S. de Leon, Jr., (3) and all department and section heads. For the
PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as spokesman of the union panel, confirmed the planned demonstration and
stated that the demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the demonstration
has nothing to do with the Company because the union has no quarrel or dispute
with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager,

informed PBMEO that the demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however, that any demonstration for
that matter should not unduly prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly , the officers
present who are the organizers of the demonstration, who shall fail to report for work
the following morning (March 4, 1969) shall be dismissed, because such failure is a
violation of the existing CBA and, therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked
Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of:
 Nicanor Tolentino, Rodolfo Munsod, Benjamin Pagcu and Florencio Padrigano. In
this afternoon meeting of March 3, 1969, Company reiterated and appealed to the
PBMEO representatives that while all workers may join the Malacañang
demonstration, the workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work; and thus utilize
the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA,
particularly Article XXIV: NO LOCKOUT — NO STRIKE'. All those who will not follow
this warning of the Company shall be dismiss; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather too late to change their
plans inasmuch as the Malacañang demonstration will be held the following morning;
and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are
as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)

Because the petitioners and their members numbering about 400 proceeded with the demonstration
despite the pleas of the respondent Company that the first shift workers should not be required to
participate in the demonstration and that the workers in the second and third shifts should be utilized
for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of
the mass demonstration on March 4, 1969, with the respondent Court, a charge against petitioners
and other employees who composed the first shift, charging them with a "violation of Section 4(a)-6
in relation to Sections 13 and 14, as well as Section 15, all of Republic Act No. 875, and of the CBA
providing for 'No Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was
accompanied by the joint affidavit of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24,
rec.). Thereafter, a corresponding complaint was filed, dated April 18, 1969, by Acting Chief
Prosecutor Antonio T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)

In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the existing CBA
because they gave the respondent Company prior notice of the mass demonstration on March 4,
1969; that the said mass demonstration was a valid exercise of their constitutional freedom of
speech against the alleged abuses of some Pasig policemen; and that their mass demonstration
was not a declaration of strike because it was not directed against the respondent firm (Annex "D",
pp. 31-34, rec.)

After considering the aforementioned stipulation of facts submitted by the parties, Judge Joaquin M.
Salvador, in an order dated September 15, 1969, found herein petitioner PBMEO guilty of bargaining
in bad faith and herein petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly
responsible for perpetrating the said unfair labor practice and were, as a consequence, considered
to have lost their status as employees of the respondent Company (Annex "F", pp. 42-56, rec.)

Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11, rec.);
and that they filed on September 29, 1969, because September 28, 1969 fell on Sunday (p. 59,
rec.), a motion for reconsideration of said order dated September 15, 1969, on the ground that it is
contrary to law and the evidence, as well as asked for ten (10) days within which to file their
arguments pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as amended (Annex "G", pp.
57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent Company
averred that herein petitioners received on September 22, 1969, the order dated September 17
(should be September 15), 1969; that under Section 15 of the amended Rules of the Court of
Industrial Relations, herein petitioners had five (5) days from September 22, 1969 or until September
27, 1969, within which to file their motion for reconsideration; and that because their motion for
reconsideration was two (2) days late, it should be accordingly dismissed, invoking Bien vs.
Castillo,  which held among others, that a motion for extension of the five-day period for the filing of a
1

motion for reconsideration should be filed before the said five-day period elapses (Annex "M", pp.
61-64, rec.).

Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated October 11,
1969, in support of their motion for reconsideration (Annex "I", pp. 65-73, rec.).

In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for
reconsideration of herein petitioners for being pro forma as it was filed beyond the reglementary
period prescribed by its Rules (Annex "J", pp. 74-75, rec.), which herein petitioners received on
October 28, 196 (pp. 12 & 76, rec.).

At the bottom of the notice of the order dated October 9, 1969, which was released on October 24,
1969 and addressed to the counsels of the parties (pp. 75-76, rec.), appear the requirements of
Sections 15, 16 and 17, as amended, of the Rules of the Court of Industrial Relations, that a motion
for reconsideration shall be filed within five (5) days from receipt of its decision or order and that an
appeal from the decision, resolution or order of the C.I.R., sitting en banc, shall be perfected within
ten (10) days from receipt thereof (p. 76, rec.).

On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from the
order dated October 9, 1969, on the ground that their failure to file their motion for reconsideration
on time was due to excusable negligence and honest mistake committed by the president of the
petitioner Union and of the office clerk of their counsel, attaching thereto the affidavits of the said
president and clerk (Annexes "K", "K-1" and "K-2", rec.).

Without waiting for any resolution on their petition for relief from the order dated October 9, 1969,
herein petitioners filed on November 3, 1969, with the Supreme Court, a notice of appeal (Annex "L",
pp. 88-89, rec.).

There is need of briefly restating basic concepts and principles which underlie the issues posed by
the case at bar.

(1) In a democracy, the preservation and enhancement of the dignity and worth of the human
personality is the central core as well as the cardinal article of faith of our civilization. The inviolable
character of man as an individual must be "protected to the largest possible extent in his thoughts
and in his beliefs as the citadel of his person."2

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the
assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments,
and the scorn and derision of those who have no patience with general principles." 3

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw
"certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials, and to establish them as legal principles to be applied by the courts. One's
rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly,
and other fundamental rights may not be submitted to a vote; they depend on the outcome of no
elections."  Laski proclaimed that "the happiness of the individual, not the well-being of the State,
4

was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits
to the authority it was entitled to exercise."5

(3) The freedoms of expression and of assembly as well as the right to petition are included among
the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to
protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated,
not only to protect the minority who want to talk, but also to benefit the majority who refuse to
listen.  And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the
6

liberties of one are not safe unless the liberties of all are protected.
7

(4) The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as in
the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights over property
rights is recognized.  Because these freedoms are "delicate and vulnerable, as well as supremely
8

precious in our society" and the "threat of sanctions may deter their exercise almost as potently as
the actual application of sanctions," they "need breathing space to survive," permitting government
regulation only "with narrow specificity."9

Property and property rights can be lost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an efficacious shield against the tyranny of officials,
of majorities, of the influential and powerful, and of oligarchs — political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political
institutions;   and such priority "gives these liberties the sanctity and the sanction not permitting
10

dubious intrusions."  11

The superiority of these freedoms over property rights is underscored by the fact that a mere
reasonable or rational relation between the means employed by the law and its object or purpose —
that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law
which restricts or impairs property rights.   On the other hand, a constitutional or valid infringement
12

of human rights requires a more stringent criterion, namely existence of a grave and immediate
danger of a substantive evil which the State has the right to prevent. So it has been stressed in the
main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer of the
opinion in Imbong vs. Ferrer.   It should be added that Mr. Justice Barredo in Gonzales vs.
13

Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y. Times Co. vs.
Sullivan,   believes that the freedoms of speech and of the press as well as of peaceful assembly
14

and of petition for redress of grievances are absolute when directed against public officials or "when
exercised in relation to our right to choose the men and women by whom we shall be
governed,"   even as Mr. Justice Castro relies on the balancing-of-interests test.   Chief Justice
15 16

Vinson is partial to the improbable danger rule formulated by Chief Judge Learned Hand,  viz. —
whether the gravity of the evil, discounted by its improbability, justifies such invasion of free
expression as is necessary to avoid the danger.  17

II

The respondent Court of Industrial Relations, after opining that the mass demonstration was not a
declaration of strike, concluded that by their "concerted act and the occurrence temporary stoppage
of work," herein petitioners are guilty bargaining in bad faith and hence violated the collective
bargaining agreement with private respondent Philippine Blooming Mills Co., inc.. Set against and
tested by foregoing principles governing a democratic society, such conclusion cannot be sustained.
The demonstration held petitioners on March 4, 1969 before Malacañang was against alleged
abuses of some Pasig policemen, not against their employer, herein private respondent firm, said
demonstrate was purely and completely an exercise of their freedom expression in general and of
their right of assembly and petition for redress of grievances in particular before appropriate
governmental agency, the Chief Executive, again the police officers of the municipality of Pasig.
They exercise their civil and political rights for their mutual aid protection from what they believe
were police excesses. As matter of fact, it was the duty of herein private respondent firm to protect
herein petitioner Union and its members fro the harassment of local police officers. It was to the
interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its
employees, so that they can report to work free from harassment, vexation or peril and as
consequence perform more efficiently their respective tasks enhance its productivity as well as
profits. Herein respondent employer did not even offer to intercede for its employees with the local
police. Was it securing peace for itself at the expenses of its workers? Was it also intimidated by the
local police or did it encourage the local police to terrorize or vex its workers? Its failure to defend its
own employees all the more weakened the position of its laborers the alleged oppressive police who
might have been all the more emboldened thereby subject its lowly employees to further indignities.

In seeking sanctuary behind their freedom of expression well as their right of assembly and of
petition against alleged persecution of local officialdom, the employees and laborers of herein private
respondent firm were fighting for their very survival, utilizing only the weapons afforded them by the
Constitution — the untrammelled enjoyment of their basic human rights. The pretension of their
employer that it would suffer loss or damage by reason of the absence of its employees from 6
o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their
property rights. Such apprehended loss or damage would not spell the difference between the life
and death of the firm or its owners or its management. The employees' pathetic situation was a stark
reality — abused, harassment and persecuted as they believed they were by the peace officers of
the municipality. As above intimated, the condition in which the employees found themselves vis-a-
vis the local police of Pasig, was a matter that vitally affected their right to individual existence as
well as that of their families. Material loss can be repaired or adequately compensated. The
debasement of the human being broken in morale and brutalized in spirit-can never be fully
evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his dying
day, even as he cries in anguish for retribution, denial of which is like rubbing salt on bruised tissues.

As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly
and of petition for redress of grievances — over property rights has been sustained.   Emphatic 18

reiteration of this basic tenet as a coveted boon — at once the shield and armor of the dignity and
worth of the human personality, the all-consuming ideal of our enlightened civilization — becomes
Our duty, if freedom and social justice have any meaning at all for him who toils so that capital can
produce economic goods that can generate happiness for all. To regard the demonstration against
police officers, not against the employer, as evidence of bad faith in collective bargaining and hence
a violation of the collective bargaining agreement and a cause for the dismissal from employment of
the demonstrating employees, stretches unduly the compass of the collective bargaining agreement,
is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the
constitutional guarantees of free expression, of peaceful assembly and of petition.  19

The collective bargaining agreement which fixes the working shifts of the employees, according to
the respondent Court Industrial Relations, in effect imposes on the workers the "duty ... to observe
regular working hours." The strain construction of the Court of Industrial Relations that a stipulated
working shifts deny the workers the right to stage mass demonstration against police abuses during
working hours, constitutes a virtual tyranny over the mind and life the workers and deserves severe
condemnation. Renunciation of the freedom should not be predicated on such a slender ground.

The mass demonstration staged by the employees on March 4, 1969 could not have been legally
enjoined by any court, such an injunction would be trenching upon the freedom expression of the
workers, even if it legally appears to be illegal picketing or strike.   The respondent Court of
20

Industrial Relations in the case at bar concedes that the mass demonstration was not a declaration
of a strike "as the same not rooted in any industrial dispute although there is concerted act and the
occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.).

The respondent firm claims that there was no need for all its employees to participate in the
demonstration and that they suggested to the Union that only the first and regular shift from 6 A.M.
to 2 P.M. should report for work in order that loss or damage to the firm will be averted. This stand
failed appreciate the sine qua non of an effective demonstration especially by a labor union, namely
the complete unity of the Union members as well as their total presence at the demonstration site in
order to generate the maximum sympathy for the validity of their cause but also immediately action
on the part of the corresponding government agencies with jurisdiction over the issues they raised
against the local police. Circulation is one of the aspects of freedom of expression.    If 21

demonstrators are reduced by one-third, then by that much the circulation of the issues raised by the
demonstration is diminished. The more the participants, the more persons can be apprised of the
purpose of the rally. Moreover, the absence of one-third of their members will be regarded as a
substantial indication of disunity in their ranks which will enervate their position and abet continued
alleged police persecution. At any rate, the Union notified the company two days in advance of their
projected demonstration and the company could have made arrangements to counteract or prevent
whatever losses it might sustain by reason of the absence of its workers for one day, especially in
this case when the Union requested it to excuse only the day-shift employees who will join the
demonstration on March 4, 1969 which request the Union reiterated in their telegram received by the
company at 9:50 in the morning of March 4, 1969, the day of the mass demonstration (pp. 42-43,
rec.). There was a lack of human understanding or compassion on the part of the firm in rejecting the
request of the Union for excuse from work for the day shifts in order to carry out its mass
demonstration. And to regard as a ground for dismissal the mass demonstration held against the
Pasig police, not against the company, is gross vindictiveness on the part of the employer, which is
as unchristian as it is unconstitutional.

III

The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of
the respondent firm to permit all its employees and workers to join the mass demonstration against
alleged police abuses and the subsequent separation of the eight (8) petitioners from the service
constituted an unconstitutional restraint on the freedom of expression, freedom of assembly and
freedom petition for redress of grievances, the respondent firm committed an unfair labor practice
defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875, otherwise known as the
Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the employees the right "to
engage in concert activities for ... mutual aid or protection"; while Section 4(a-1) regards as an unfair
labor practice for an employer interfere with, restrain or coerce employees in the exercise their rights
guaranteed in Section Three."

We repeat that the obvious purpose of the mass demonstration staged by the workers of the
respondent firm on March 4, 1969, was for their mutual aid and protection against alleged police
abuses, denial of which was interference with or restraint on the right of the employees to engage in
such common action to better shield themselves against such alleged police indignities. The
insistence on the part of the respondent firm that the workers for the morning and regular shift
should not participate in the mass demonstration, under pain of dismissal, was as heretofore stated,
"a potent means of inhibiting speech."  22

Such a concerted action for their mutual help and protection deserves at least equal protection as
the concerted action of employees in giving publicity to a letter complaint charging bank president
with immorality, nepotism, favoritism an discrimination in the appointment and promotion of ban
employees.   We further ruled in the Republic Savings Bank case, supra, that for the employees to
23

come within the protective mantle of Section 3 in relation to Section 4(a-1) on Republic Act No. 875,
"it is not necessary that union activity be involved or that collective bargaining be contemplated," as
long as the concerted activity is for the furtherance of their interests. 
24

As stated clearly in the stipulation of facts embodied in the questioned order of respondent Court
dated September 15, 1969, the company, "while expressly acknowledging, that the demonstration is
an inalienable right of the Union guaranteed by the Constitution," nonetheless emphasized that "any
demonstration for that matter should not unduly prejudice the normal operation of the company" and
"warned the PBMEO representatives that workers who belong to the first and regular shifts, who
without previous leave of absence approved by the Company, particularly the officers present who
are the organizers of the demonstration, who shall fail to report for work the following morning
(March 4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and,
therefore, would be amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of
dismissal tended to coerce the employees from joining the mass demonstration. However, the
issues that the employees raised against the local police, were more important to them because they
had the courage to proceed with the demonstration, despite such threat of dismissal. The most that
could happen to them was to lose a day's wage by reason of their absence from work on the day of
the demonstration. One day's pay means much to a laborer, more especially if he has a family to
support. Yet, they were willing to forego their one-day salary hoping that their demonstration would
bring about the desired relief from police abuses. But management was adamant in refusing to
recognize the superior legitimacy of their right of free speech, free assembly and the right to petition
for redress.

Because the respondent company ostensibly did not find it necessary to demand from the workers
proof of the truth of the alleged abuses inflicted on them by the local police, it thereby concedes that
the evidence of such abuses should properly be submitted to the corresponding authorities having
jurisdiction over their complaint and to whom such complaint may be referred by the President of the
Philippines for proper investigation and action with a view to disciplining the local police officers
involved.

On the other hand, while the respondent Court of Industrial Relations found that the demonstration
"paralyzed to a large extent the operations of the complainant company," the respondent Court of
Industrial Relations did not make any finding as to the fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm did not sustain any loss or damage. It did not
present evidence as to whether it lost expected profits for failure to comply with purchase orders on
that day; or that penalties were exacted from it by customers whose orders could not be filled that
day of the demonstration; or that purchase orders were cancelled by the customers by reason of its
failure to deliver the materials ordered; or that its own equipment or materials or products were
damaged due to absence of its workers on March 4, 1969. On the contrary, the company saved a
sizable amount in the form of wages for its hundreds of workers, cost of fuel, water and electric
consumption that day. Such savings could have amply compensated for unrealized profits or
damages it might have sustained by reason of the absence of its workers for only one day.

IV

Apart from violating the constitutional guarantees of free speech and assembly as well as the right to
petition for redress of grievances of the employees, the dismissal of the eight (8) leaders of the
workers for proceeding with the demonstration and consequently being absent from work,
constitutes a denial of social justice likewise assured by the fundamental law to these lowly
employees. Section 5 of Article II of the Constitution imposes upon the State "the promotion of social
justice to insure the well-being and economic security of all of the people," which guarantee is
emphasized by the other directive in Section 6 of Article XIV of the Constitution that "the State shall
afford protection to labor ...". Respondent Court of Industrial Relations as an agency of the State is
under obligation at all times to give meaning and substance to these constitutional guarantees in
favor of the working man; for otherwise these constitutional safeguards would be merely a lot of
"meaningless constitutional patter." Under the Industrial Peace Act, the Court of Industrial Relations
is enjoined to effect the policy of the law "to eliminate the causes of industrial unrest by encouraging
and protecting the exercise by employees of their right to self-organization for the purpose of
collective bargaining and for the promotion of their moral, social and economic well-being." It is most
unfortunate in the case at bar that respondent Court of Industrial Relations, the very governmental
agency designed therefor, failed to implement this policy and failed to keep faith with its avowed
mission — its raison d'etre — as ordained and directed by the Constitution.

It has been likewise established that a violation of a constitutional right divests the court of
jurisdiction; and as a consequence its judgment is null and void and confers no rights. Relief from a
criminal conviction secured at the sacrifice of constitutional liberties, may be obtained through
habeas corpus proceedings even long after the finality of the judgment. Thus, habeas corpus is the
remedy to obtain the release of an individual, who is convicted by final judgment through a forced
confession, which violated his constitutional right against self-incrimination;   or who is denied the
25

right to present evidence in his defense as a deprivation of his liberty without due process of
law,   even after the accused has already served sentence for twenty-two years. 
26 27

Both the respondents Court of Industrial Relations and private firm trenched upon these
constitutional immunities of petitioners. Both failed to accord preference to such rights and
aggravated the inhumanity to which the aggrieved workers claimed they had been subjected by the
municipal police. Having violated these basic human rights of the laborers, the Court of Industrial
Relations ousted itself of jurisdiction and the questioned orders it issued in the instant case are a
nullity. Recognition and protection of such freedoms are imperative on all public offices including the
courts   as well as private citizens and corporations, the exercise and enjoyment of which must not
28

be nullified by mere procedural rule promulgated by the Court Industrial Relations exercising a
purely delegate legislative power, when even a law enacted by Congress must yield to the
untrammelled enjoyment of these human rights. There is no time limit to the exercise of the
freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the printing of one
article or the staging of one demonstration. It is a continuing immunity to be invoked and exercised
when exigent and expedient whenever there are errors to be rectified, abuses to be denounced,
inhumanities to be condemned. Otherwise these guarantees in the Bill of Rights would be vitiated by
rule on procedure prescribing the period for appeal. The battle then would be reduced to a race for
time. And in such a contest between an employer and its laborer, the latter eventually loses because
he cannot employ the best an dedicated counsel who can defend his interest with the required
diligence and zeal, bereft as he is of the financial resources with which to pay for competent legal
services.  -a
28

VI

The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or writ
should filed within five (5) days from notice thereof and that the arguments in support of said motion
shall be filed within ten (10) days from the date of filing of such motion for reconsideration (Sec. 16).
As above intimated, these rules of procedure were promulgated by the Court of Industrial Relations
pursuant to a legislative delegation. 
29

The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice on
September 22, 1969 of the order dated September 15, 1969 or two (2) days late. Petitioners claim
that they could have filed it on September 28, 1969, but it was a Sunday.

Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the rights of
the petitioning employees? Or more directly and concretely, does the inadvertent omission to comply
with a mere Court of Industrial Relations procedural rule governing the period for filing a motion for
reconsideration or appeal in labor cases, promulgated pursuant to a legislative delegation, prevail
over constitutional rights? The answer should be obvious in the light of the aforecited cases. To
accord supremacy to the foregoing rules of the Court of Industrial Relations over basic human rights
sheltered by the Constitution, is not only incompatible with the basic tenet of constitutional
government that the Constitution is superior to any statute or subordinate rules and regulations, but
also does violence to natural reason and logic. The dominance and superiority of the constitutional
right over the aforesaid Court of Industrial Relations procedural rule of necessity should be affirmed.
Such a Court of Industrial Relations rule as applied in this case does not implement or reinforce or
strengthen the constitutional rights affected,' but instead constrict the same to the point of nullifying
the enjoyment thereof by the petitioning employees. Said Court of Industrial Relations rule,
promulgated as it was pursuant to a mere legislative delegation, is unreasonable and therefore is
beyond the authority granted by the Constitution and the law. A period of five (5) days within which
to file a motion for reconsideration is too short, especially for the aggrieved workers, who usually do
not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeals
and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re
hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of
Court). The delay in the filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of
Industrial are concerned.

It should be stressed here that the motion for reconsideration dated September 27, 1969, is based
on the ground that the order sought to be reconsidered "is not in accordance with law, evidence and
facts adduced during the hearing," and likewise prays for an extension of ten (10) days within which
to file arguments pursuant to Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations
(Annex "G", pp. 57-60, rec.); although the arguments were actually filed by the herein petitioners on
October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period required for the filing of
such supporting arguments counted from the filing of the motion for reconsideration. Herein
petitioners received only on October 28, 1969 the resolution dated October 9, 1969 dismissing the
motion for reconsideration for being pro forma since it was filed beyond the reglementary period
(Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider is filed out of time, or
where the arguments in suppf such motion are filed beyond the 10 day reglementary period provided
for by the Court of Industrial Relations rules, the order or decision subject of -a reconsideration
29

becomes final and unappealable. But in all these cases, the constitutional rights of free expression,
free assembly and petition were not involved.

It is a procedural rule that generally all causes of action and defenses presently available must be
specifically raised in the complaint or answer; so that any cause of action or defense not raised in
such pleadings, is deemed waived. However, a constitutional issue can be raised any time, even for
the first time on appeal, if it appears that the determination of the constitutional issue is necessary to
a decision of the case, the very lis mota of the case without the resolution of which no final and
complete determination of the dispute can be made.   It is thus seen that a procedural rule of
30

Congress or of the Supreme Court gives way to a constitutional right. In the instant case, the
procedural rule of the Court of Industrial Relations, a creature of Congress, must likewise yield to the
constitutional rights invoked by herein petitioners even before the institution of the unfair labor
practice charged against them and in their defense to the said charge.

In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic law, is
a most compelling reason to deny application of a Court of Industrial Relations rule which impinges
on such human rights.  -a
30

It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules
or to except a particular case from its operation, whenever the purposes of justice require."  -b Mr.
30

Justice Barredo in his concurring opinion in Estrada vs. Sto. Domingo.  -c reiterated this principle
30

and added that

Under this authority, this Court is enabled to cove with all situations without
concerning itself about procedural niceties that do not square with the need to do
justice, in any case, without further loss of time, provided that the right of the parties
to a full day in court is not substantially impaired. Thus, this Court may treat an
appeal as a certiorari and vice-versa. In other words, when all the material facts are
spread in the records before Us, and all the parties have been duly heard, it matters
little that the error of the court a quo is of judgment or of jurisdiction. We can then
and there render the appropriate judgment. Is within the contemplation of this
doctrine that as it is perfectly legal and within the power of this Court to strike down in
an appeal acts without or in excess of jurisdiction or committed with grave abuse of
discretion, it cannot be beyond the admit of its authority, in appropriate cases, to
reverse in a certain proceed in any error of judgment of a court a quo which cannot
be exactly categorized as a flaw of jurisdiction. If there can be any doubt, which I do
not entertain, on whether or not the errors this Court has found in the decision of the
Court of Appeals are short of being jurisdiction nullities or excesses, this Court would
still be on firm legal grounds should it choose to reverse said decision here and
now even if such errors can be considered as mere mistakes of judgment or only as
faults in the exercise of jurisdiction, so as to avoid the unnecessary return of this
case to the lower court for the sole purpose of pursuing the ordinary course of an
appeal. (Emphasis supplied).  -d
30

Insistence on the application of the questioned Court industrial Relations rule in this particular case
at bar would an unreasoning adherence to "Procedural niceties" which denies justice to the herein
laborers, whose basic human freedoms, including the right to survive, must be according supremacy
over the property rights of their employer firm which has been given a full hearing on this case,
especially when, as in the case at bar, no actual material damage has be demonstrated as having
been inflicted on its property rights.

If We can disregard our own rules when justice requires it, obedience to the Constitution renders
more imperative the suspension of a Court of Industrial Relations rule that clash with the human
rights sanctioned and shielded with resolution concern by the specific guarantees outlined in the
organic law. It should be stressed that the application in the instant case Section 15 of the Court of
Industrial Relations rules relied upon by herein respondent firm is unreasonable and therefore such
application becomes unconstitutional as it subverts the human rights of petitioning labor union and
workers in the light of the peculiar facts and circumstances revealed by the record.

The suspension of the application of Section 15 of the Court of Industrial Relations rules with
reference to the case at is also authorized by Section 20 of Commonwealth Act No. 103, the C.I.R.
charter, which enjoins the Court of Industrial Relations to "act according to justice and equity and
substantial merits of the case, without regard to technicalities or legal forms ..."

On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice Barredo,
speaking for the Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et. al.,  -e thus:
30

As to the point that the evidence being offered by the petitioners in the motion for
new trial is not "newly discovered," as such term is understood in the rules of
procedure for the ordinary courts, We hold that such criterion is not binding upon the
Court of Industrial Relations. Under Section 20 of Commonwealth Act No. 103, 'The
Court of Industrial Relations shall adopt its, rules or procedure and shall have such
other powers as generally pertain to a court of justice: Provided, however, That in the
hearing, investigation and determination of any question or controversy and in
exercising any duties and power under this Act, the Court shall act according to
justice and equity and substantial merits of the case, without regard to technicalities
or legal forms and shall not be bound by any technical rules of legal evidence but
may inform its mind in such manner as it may deem just and equitable.' By this
provision the industrial court is disengaged from the rigidity of the technicalities
applicable to ordinary courts. Said court is not even restricted to the specific relief
demanded by the parties but may issue such orders as may be deemed necessary
or expedient for the purpose of settling the dispute or dispelling any doubts that may
give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons, We
believe that this provision is ample enough to have enabled the respondent court to
consider whether or not its previous ruling that petitioners constitute a minority was
founded on fact, without regard to the technical meaning of newly discovered
evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578).
(emphasis supplied.)

To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant case
is to rule in effect that the poor workers, who can ill-afford an alert competent lawyer, can no longer
seek the sanctuary of human freedoms secured to them by the fundamental law, simply because
their counsel — erroneously believing that he received a copy of the decision on September 23,
1969, instead of September 22, 1969 - filed his motion for reconsideration September 29, 1969,
which practically is only one day late considering that September 28, 1969 was a Sunday.

Many a time, this Court deviated from procedure technicalities when they ceased to be instruments
of justice, for the attainment of which such rules have been devised. Summarizing the jurisprudence
on this score, Mr. Justice Fernando, speaking for a unanimous Court in Palma vs. Oreta,  -f Stated:
30
 As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315
[1910]. The Villamor decision was cited with approval in Register of Deeds v. Phil.
Nat. Bank, 84 Phil. 600 [1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958]
and Uy v. Uy, 14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910,
"technicality. when it deserts its proper-office as an aid to justice and becomes its
great hindrance and chief enemy, deserves scant consideration from courts." (Ibid.,
p, 322.) To that norm, this Court has remained committed. The late Justice Recto in
Blanco v. Bernabe, (63 Phil. 124 [1936]) was of a similar mind. For him the
interpretation of procedural rule should never "sacrifice the ends justice." While
"procedural laws are no other than technicalities" view them in their entirety, 'they
were adopted not as ends themselves for the compliance with which courts have
organized and function, but as means conducive to the realization the administration
of the law and of justice (Ibid., p.,128). We have remained steadfastly opposed, in
the highly rhetorical language Justice Felix, to "a sacrifice of substantial rights of a
litigant in altar of sophisticated technicalities with impairment of the sacred principles
of justice." (Potenciano v. Court of Appeals, 104 Phil. 156, 161 [1958]). As succinctly
put by Justice Makalintal, they "should give way to the realities of the situation."
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest
decision in point promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing
McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was
partial to an earlier formulation of Justice Labrador that rules of procedure "are not to
be applied in a very rigid, technical sense"; but are intended "to help secure
substantial justice." (Ibid., p. 843) ...  -g
30

Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the
dismissal or termination of the employment of the petitioning eight (8) leaders of the Union is harsh
for a one-day absence from work. The respondent Court itself recognized the severity of such a
sanction when it did not include the dismissal of the other 393 employees who are members of the
same Union and who participated in the demonstration against the Pasig police. As a matter of fact,
upon the intercession of the Secretary of Labor, the Union members who are not officers, were not
dismissed and only the Union itself and its thirteen (13) officers were specifically named as
respondents in the unfair labor practice charge filed against them by the firm (pp. 16-20,
respondent's Brief; Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for respondent firm
insinuates that not all the 400 or so employee participated in the demonstration, for which reason
only the Union and its thirteen (13) officers were specifically named in the unfair labor practice
charge (p. 20, respondent's brief). If that were so, then many, if not all, of the morning and regular
shifts reported for work on March 4, 1969 and that, as a consequence, the firm continued in
operation that day and did not sustain any damage.

The appropriate penalty — if it deserves any penalty at all — should have been simply to charge
said one-day absence against their vacation or sick leave. But to dismiss the eight (8) leaders of the
petitioner Union is a most cruel penalty, since as aforestated the Union leaders depend on their
wages for their daily sustenance as well as that of their respective families aside from the fact that it
is a lethal blow to unionism, while at the same time strengthening the oppressive hand of the petty
tyrants in the localities.

Mr. Justice Douglas articulated this pointed reminder:

The challenge to our liberties comes frequently not from those who consciously seek
to destroy our system of Government, but from men of goodwill — good men who
allow their proper concerns to blind them to the fact that what they propose to
accomplish involves an impairment of liberty.
 ... The Motives of these men are often commendable. What we must remember,
however, is that preservation of liberties does not depend on motives. A suppression
of liberty has the same effect whether the suppress or be a reformer or an outlaw.
The only protection against misguided zeal is a constant alertness of the infractions
of the guarantees of liberty contained in our Constitution. Each surrender of liberty to
the demands of the moment makes easier another, larger surrender. The battle over
the Bill of Rights is a never ending one.

... The liberties of any person are the liberties of all of us.

... In short, the Liberties of none are safe unless the liberties of all are protected.

... But even if we should sense no danger to our own liberties, even if we feel secure
because we belong to a group that is important and respected, we must recognize
that our Bill of Rights is a code of fair play for the less fortunate that we in all honor
and good conscience must be observe.  31

The case at bar is worse.

Management has shown not only lack of good-will or good intention, but a complete lack of
sympathetic understanding of the plight of its laborers who claim that they are being subjected to
indignities by the local police, It was more expedient for the firm to conserve its income or profits
than to assist its employees in their fight for their freedoms and security against alleged petty
tyrannies of local police officers. This is sheer opportunism. Such opportunism and expediency
resorted to by the respondent company assaulted the immunities and welfare of its employees. It
was pure and implement selfishness, if not greed.

Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R.,   where the petitioner
32

Bank dismissed eight (8) employees for having written and published "a patently libelous letter ... to
the Bank president demanding his resignation on the grounds of immorality, nepotism in the
appointment and favoritism as well as discrimination in the promotion of bank employees." Therein,
thru Mr. Justice Castro, We ruled:

It will avail the Bank none to gloat over this admission of the respondents. Assuming
that the latter acted in their individual capacities when they wrote the letter-charge
they were nonetheless protected for they were engaged in concerted activity, in the
exercise of their right of self organization that includes concerted activity for mutual
aid and protection, (Section 3 of the Industrial Peace Act ...) This is the view of some
members of this Court. For, as has been aptly stated, the joining in protests or
demands, even by a small group of employees, if in furtherance of their interests as
such, is a concerted activity protected by the Industrial Peace Act. It is not necessary
that union activity be involved or that collective bargaining be contemplated. (Annot.,
6 A.L.R. 2d 416 [1949]).

xxx xxx xxx

Instead of stifling criticism, the Bank should have allowed the respondents to air their
grievances.

xxx xxx xxx

 The Bank defends its action by invoking its right to discipline for what it calls the
respondents' libel in giving undue publicity to their letter-charge. To be sure, the right
of self-organization of employees is not unlimited (Republic Aviation Corp. vs. NLRB
324 U.S. 793 [1945]), as the right of the employer to discharge for cause (Philippine
Education Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is
undenied. The Industrial Peace Act does not touch the normal exercise of the right of
the employer to select his employees or to discharge them. It is directed solely
against the abuse of that right by interfering with the countervailing right of self
organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177 [1941])...

xxx xxx xxx

In the final sum and substance, this Court is in unanimity that the Bank's conduct,
identified as an interference with the employees' right of self-organization or as a
retaliatory action, and/or as a refusal to bargain collectively, constituted an unfair
labor practice within the meaning and intendment of section 4(a) of the Industrial
Peace Act. (Emphasis supplied.)  33

If free expression was accorded recognition and protection to fortify labor unionism in the Republic
Savings case, supra, where the complaint assailed the morality and integrity of the bank president
no less, such recognition and protection for free speech, free assembly and right to petition are
rendered all the more justifiable and more imperative in the case at bar, where the mass
demonstration was not against the company nor any of its officers.

WHEREFORE, judgement is hereby rendered:

(1) setting aside as null and void the orders of the respondent Court of Industrial Relations dated
September 15 and October 9, 1969; and

(2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the date of
their separation from the service until re instated, minus one day's pay and whatever earnings they
might have realized from other sources during their separation from the service.

With costs against private respondent Philippine Blooming Company, Inc.

Zaldivar, Castro, Fernando and Esguerra, JJ., concur.

Makalintal, C.J, took no part.

Separate Opinions

 
BARREDO, J., dissenting:
I bow in respectful and sincere admiration, but my sense of duty compels me to dissent.

The background of this case may be found principally in the stipulation of facts upon which the
decision under review is based. It is as follows:

1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation

existing and operating under and by virtue of the laws of the Philippines with
corporate address at 666 Muelle de Binondo, Manila, which is the employer of
respondent;

2. That Philippine Blooming Mills Employees Organization PBMEO for short, is a

legitimate labor organization, and the respondents herein are either officers of
respondent PBMEO or members thereof;

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacañang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM — 2:00 PM workers as well
as those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM
in the morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur
L. Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all department and section heads.
For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union panel, confirmed the planned demonstration
and stated that the demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the demonstration
has nothing to do with the Company because the union has no quarrel or dispute
with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager,

informed PBMEO that the demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however, that any demonstration for
that matter should not unduly prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon, warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly the officers
present who are the organizers of the demonstration, who shall fail to report for work
the following morning (March 4, 1969) shall be dismissed, because such failure is a
violation of the existing CBA and, therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked.
Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and Florencio Padrigano. In
this afternoon meeting of March 3, 1969, Company reiterated and appealed to the
PBMEO representatives that while all workers may join the Malacañang
demonstration, the workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work; and thus utilize
 the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA,
particularly Article XXIV "NO LOCKOUT — NO STRIKE". All those who will not follow
this warning of the Company shall be dismissed; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather too late to change their
plans inasmuch as the Malacañang demonstration will be held the following morning;
and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are
as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.

Additionally, the trial court found that "the projected demonstration did in fact occur and in the
process paralyzed to a large extent the operations of the complainant company". (p. 5, Annex F).

Upon these facts the Prosecution Division of the Court of Industrial Relations filed with said court a
complaint for Unfair Labor Practice against petitioners charging that: .

3. That on March 4, 1969, respondents (petitioners herein) particularly those in the

first shift, in violation of the existing collective bargaining agreement and without filing
the necessary notice as provided for by law, failed to report for work, amounting to a
declaration of strike;

4. That the above acts are in violation of Section 4(a) subparagraph 6, in relation to
Sections 13, 14 and 15 of Republic Act No. 875, and of the collective bargaining
agreement. (Pars. 3 and 4, Annex C.)

After due hearing, the court rendered judgment, the dispositive part of which read's:

IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees

Organization is found guilty of bargaining in bad faith and is hereby ordered to cease
and desist from further committing the same and its representatives namely:
respondent Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo
Monsod who are directly responsible for perpetrating this unfair labor practice act,
are hereby considered to have lost their status as employees of the Philippine
Blooming Mills, Inc. (p. 8, Annex F.)

Although it is alleged in the petition herein that petitioners were notified of this decision on
September 23, 1969, there seems to be no serious question that they were actually served therewith
on September 22, 1969. In fact, petitioners admitted this date of notice in paragraph 2 of their
Petition for Relief dated October 30, 1969 and filed with the industrial court on the following day.
(See Annex K.)

It is not controverted that it was only on September 29, 1969, or seven (7) days after they were
notified of the court's decision, that petitioners filed their motion for reconsideration with the industrial
court; as it is also not disputed that they filed their "Arguments in Support of the Respondents'
Motion for Reconsideration" only on October 14, 1969. (See Annex I.) In other words, petitioners'
motion for reconsideration was filed two (2) days after the lapse of the five (5) day period provided
for the filing thereof in the rules of the Court of Industrial Relations, whereas the "Arguments" were
filed five (5) days after the expiration of the period therefor also specified in the same rules.
Accordingly, the first issue that confronts the Court is the one raised by respondent private firm,
namely, that in view of the failure of petitioners to file not only their motion for reconsideration but
also their arguments in support thereof within the periods respectively fixed in the rules therefor, the
Court of Industrial Relations acted correctly and within the law in rendering and issuing its impugned
order of October 9, 1969 dismissing petitioners' motion for reconsideration.

Respondent's contention presents no problem. Squarely applicable to the facts hereof is the decision
of this Court in Elizalde & Co. Inc. vs. Court of Industrial Relations  wherein it was ruled that:
1

August 6, 1963. Petitioner received a copy of the decision of the then Associate
Judge Arsenio I. Martinez, the dispositive part of which was set forth earlier in this
opinion.

August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were
advanced in support thereof.

August 21, 1963. Petitioner moved for additional time to file its arguments in support
of its motion to reconsider.

August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion
seeking reconsideration.

September 16, 1963. CIR en banc resolved to dismiss the motion for

reconsideration. Ground therefor was that the arguments were filed out of time.

October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the
present petition with this Court.

Upon respondent Perlado's return and petitioner's brief (respondents did not file their
brief), the case is now before us for resolution.

1. That the judgment appealed from is a final judgment — not merely an interlocutory
order — there is no doubt. The fact that there is need for computation of respondent
Perlado's overtime pay would not render the decision incomplete. This in effect is the
holding of the Court in Pan American World Airways System (Philippines) vs. Pan
American Employees Association, which runs thus: 'It is next contended that in
ordering the Chief of the Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated its judicial functions and
thereby rendered an incomplete decision. We do not believe so. Computation of the
overtime pay involves a mechanical function, at most. And the report would still have
to be submitted to the Industrial Court for its approval, by the very terms of the order
itself. That there was no specification of the amount of overtime pay in the decision
did not make it incomplete, since this matter should necessarily be made clear
enough in the implementation of the decision (see Malate Taxicab & Garage, Inc. vs.
CIR, et al.,
L-8718, May 11, 1956).

2. But has that judgment reached the stage of finality in the sense that it can no
longer, be disturbed?
CIR Rules of Procedure, as amended, and the jurisprudence of this Court both
answer the question in the affirmative.

Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment
of the trial judge must do so within five (5) days from the date on which he received
notice of the decision, subject of the motion. Next follows Section 16 which says that
the motion must be submitted with arguments supporting the same. But if said
arguments could not be submitted simultaneously with the motion, the same section
commands the 'the movant shall file the same within ten (10) days from the date of
the filing of his motion for reconsideration.' Section 17 of the same rules admonishes
a movant that "(f)ailure to observe the above-specified periods shall be sufficient
cause for dismissal of the motion for reconsideration or striking out of the answer
and/or the supporting arguments, as the case may be".

Not that the foregoing rules stand alone. Jurisprudence has since stabilized the
enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a
pro forma motion for reconsideration was filed out of time its denial is in order
pursuant to CIR rules, regardless of whether the arguments in support of said motion
were or were not filed on time. Pangasinan Employees Laborers & Tenants
Association (PELTA) vs. Martinez, (L-13846, May 20, 1960) pronounced that where
a motion to reconsider is filed out of time, the order or decision subject of
reconsideration comes final. And so also, where the arguments in support of the
motion for reconsideration are filed beyond the ten-day reglementary period, the pre
forma motion for reconsideration although seasonably filed must nevertheless be
denied. This in essence is our ruling in Local 7, Press & Printing Free Workers
(FFW) vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of
Industrial Relations, is that where the motion for reconsideration is denied upon the
ground that the arguments in support thereof were filed out of time, the order or
decision subject of the motion becomes "final and unappealable".

We find no difficulty in applying the foregoing rules and pronouncements of this Court
in the case before us. On August 6, petitioner received a copy of the judgment of
Judge Arsenio I. Martinez aforesaid. Petitioner's motion to reconsider — without
arguments in support thereof — of August 12 was filed on time. For, August 11, the
end of the five-day reglementary period to file a motion for reconsideration, was a
Sunday. But, actually, the written arguments in support of the said motion were
submitted to the court on August 27. The period from August 12 to August 27, is a
space of fifteen (15) days. Surely enough, said arguments were filed out of time —
five (5) days late. And the judgment had become final.

3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of
time within which to present its arguments in support of its motion. Counsel in his
petition before this Court pleads that the foregoing motion was grounded on the
'extremely busy and difficult schedule of counsel which would not enable him to do
so within the stated ten-day reglementary period. The arguments were only filed on
August 27 — five (5) days late, as aforesaid.

The foregoing circumstances will not avail petitioner any. It is to be noted that the
motion for expansion of time was filed only on August 21, that is, one day before the
due date which is August 22. It was petitioner's duty to see to it that the court act on
this motion forthwith or at least inquire as to the fate thereof not later than the 22nd of
August. It did not. It merely filed its arguments on the 27th.
 To be underscored at this point is that "obviously to speed up the disposition of
cases", CIR "has a standing rule against the extension of the ten-day period for filing
supporting arguments". That no-extension policy should have placed petitioner on
guard. It should not have simply folded its arms, sit by supinely and relied on the
court's generosity. To compound petitioner's neglect, it filed the arguments only on
August 27, 1953, knowing full well that by that time the reglementary period had
expired.

Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing
the motion for reconsideration on the ground that the supporting arguments were
filed out of time. That ruling in effect denied the motion for extension.

We rule that CIR's judgment has become final and unappealable. We may not review
the same.

Notwithstanding this unequivocal and unmistakable precedent, which has not been in any way
modified, much less revoked or reversed by this Court, the main opinion has chosen not only to go
into the merits of petitioners' pose that the respondent court erred in holding them guilty of
bargaining in bad faith but also to ultimately uphold petitioners' claim for reinstatement on
constitutional grounds.

Precisely because the conclusions of the main opinion are predicated on an exposition of the
constitutional guarantees of freedoms of speech and peaceful assembly for redress of grievances,
so scholarly and masterful that it is bound to overwhelm Us unless We note carefully the real issues
in this case, I am constrained, over and above my sincere admiration for the eloquence and zeal of
Mr. Justice Makasiar's brilliant dissertation, to dutifully state that as presented by petitioners
themselves and in the light of its attendant circumstances, this case does not call for the resolution
of any constitutional issue. Admittedly, the invocation of any constitutional guarantee, particularly
when it directly affects individual freedoms enshrined in the bill of rights, deserves the closest
attention of this Court. It is my understanding of constitutional law and judicial practices related
thereto, however, that even the most valuable of our constitutional rights may be protected by the
courts only when their jurisdiction over the subject matter is unquestionably established and the
applicable rules of procedure consistent with substantive and procedural due process are observed.
No doubt no constitutional right can be sacrificed in the altar of procedural technicalities, very often
fittingly downgraded as niceties but as far as I know, this principle is applied to annul or set aside
final judgments only in cases wherein there is a possible denial of due process. I have not come
across any instance, and none is mentioned or cited in the well-documented main opinion, wherein a
final and executory judgment has been invalidated and set aside upon the ground that the same has
the effect of sanctioning the violation of a constitutional right, unless such violation amounts to a
denial of due process.

Without support from any provision of the constitution or any law or from any judicial precedent or
reason of principle, the main opinion nudely and unqualifiedly asserts, as if it were universally
established and accepted as an absolute rule, that the violation of a constitutional right divests the
court of jurisdiction; and as a consequence its judgment is null and void and confers no
rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is mentioned almost in passing, does
uphold the proposition that "relief from a criminal conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus proceedings even after the finality of the
judgment". And, of course, Chavez is correct; as is also Abriol vs. Homeres  which, in principle,
2

served as its precedent, for the very simple reason that in both of those cases, the accused were
denied due process. In Chavez, the accused was compelled to testify against himself as a witness
for the prosecution; in Abriol, the accused was denied his request to be allowed to present evidence
to establish his defense after his demurrer to the People's evidence was denied.

As may be seen, however, the constitutional issues involved in those cases are a far cry from the
one now before Us. Here, petitioners do not claim they were denied due process. Nor do they
pretend that in denying their motion for reconsideration, "the respondent Court of Industrial Relations
and private firm trenched upon any of their constitutional immunities ...," contrary to the statement to
such effect in the main opinion. Indeed, neither in the petition herein nor in any of the other pleading
of petitioners can any direct or indirect assertion be found assailing the impugned decision of the
respondent court as being null and void because it sanctioned a denial of a valued constitutional
liberty.

In their petition, petitioners state the issue for Our resolution as follows:

Petitioners herein humbly submit that the issue to be resolved is whether or not the
respondent Court en banc under the facts and circumstances, should consider the
Motion for Reconsideration filed by your petitioners.

Petitioners, therefore, in filing this petition for a writ of certiorari, humbly beg this
Honorable Court to treat this petition under Rule 43 and 65 of the Rules of Court.

xxx xxx xxx

The basic issue therefore is the application by the Court en banc of the strict and
narrow technical rules of procedure without taking into account justice, equity and
substantial merits of the case.

On the other hand, the complete argument submitted by petitioners on this point in
their brief runs thus:

III

ISSUES

1. Does the refusal to heed a warning in the exercise of a fundamental right to

peaceably assemble and petition the government for redress of grievances constitute
bargaining in bad faith? and,

Do the facts found by the court below justify the declaration and conclusion that the
union was guilty of bargaining in bad faith meriting the dismissal of the persons
allegedly responsible therefore?

2. Was there grave abuse of discretion when the respondent court refused to act one
way or another on the petition for relief from the resolution of October 9, 1969?

IV

ARGUMENT

The respondent Court erred in finding the petition union guilty of bargaining in bad
faith and consequently dismissing the persons allegedly responsible therefor,
because such conclusion is country to the evidence on record; that the dismissal of
leaders was discriminatory.

As a result of exercising the constitutional rights of freedom to assemble and petition

the duly constituted authorities for redress of their grievances, the petitioners were
charged and then condemned of bargaining in bad faith.

The findings that petitioners were guilty of bargaining in bad faith were not borne out
by the records. It was not even alleged nor proven by evidence. What has been
alleged and which the respondent company tried to prove was that the demonstration
amounted to a strike and hence, a violation of the provisions of the "no-lockout — no
strike" clause of the collective bargaining agreement. However, this allegation and
proof submitted by the respondent company were practically resolved when the
respondent court in the same decision stated categorically:

'The company alleges that the walkout because of the demonstration

is tantamount to a declaration of a strike. We do not think so, as the
same is not rooted in any industrial dispute although there is a
concerted act and the occurrence of a temporary stoppage of work.'
(Emphasis supplied, p. 4, 5th paragraph, Decision.)

The respondent court's findings that the petitioner union bargained in

bad faith is not tenable because:

First, it has not been alleged nor proven by the respondent company; .

Second, before the demonstration, the petitioner union and the respondent company
convened twice in a meeting to thresh out the matter of demonstration. Petitioners
requested that the employees and workers be excused but the respondent company
instead of granting the request or even settling the matter so that the hours of work
will not be disrupted, immediately threatened the employees of mass dismissal;

Third, the refusal of the petitioner union to grant the request of the company that the
first shift shall be excluded in the demonstration is not tantamount to bargaining in
bad faith because the company knew that the officers of the union belonged to the
first shift, and that the union cannot go and lead the demonstration without their
officers. It must be stated that the company intends to prohibit its officers to lead and
join the demonstration because most of them belonged to the first shift; and

Fourth, the findings of the respondent court that the demonstration if allowed will
practically give the union the right to change the working conditions agreed in the
CBA is a conclusion of facts, opinionated and not borne by any evidence on record.
The demonstration did not practically change the terms or conditions of employment
because it was only for one (1) day and the company knew about it before it went
through. We can even say that it was the company who bargained in bad faith, when
upon representation of the Bureau of Labor not to dismiss the employees
demonstrating, the company tacitly approved the same and yet while the
demonstration was in progress, the company filed a ULP Charge and consequently
dismissed those who participated.

Records of the case show that more or less 400 members of the union participated in
the demonstration and yet, the respondent court selected the eight officers to be
 dismissed from the union thus losing their status as employees of the respondent
company. The respondent court should have taken into account that the company's
action in allowing the return of more or less three hundred ninety two (392)
employees/members of the union is an act of condonation and the dismissal of the
eight (8) officers is an act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines
Employees Association, G.R. No. L-8197, Oct. 31, 1958). Seemingly, from the
opinion stated in the decision by the court, while there is a collective bargaining
agreement, the union cannot go on demonstration or go on strike because it will
change the terms and conditions of employment agreed in the CBA. It follows that
the CBA is over and above the constitutional rights of a man to demonstrate and the
statutory rights of a union to strike as provided for in Republic Act 875. This creates a
bad precedent because it will appear that the rights of the union is solely dependent
upon the CBA.

One of the cardinal primary rights which must be respected in proceedings before the
Court of Industrial Relations is that "the decision must be rendered on the evidence
presented at the hearing, or at least contained in the record and disclosed to the
parties affected." (Interstate Commerce Commission vs. L & N R. Co., 227 U.S. 88,
33 S. Ct. 185, 57 Law ed. 431.) Only by confining the administrative tribunal to the
evidence disclosed to the parties, can the latter be protected in their rights to know
and meet the case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February
27, 1940.)

The petitioners respectfully and humbly submit that there is no scintilla of evidence to
support the findings of the respondent court that the petitioner union bargained in
bad faith. Corollary therefore, the dismissal of the individual petitioners is without
basis either in fact or in law.

Additionally, in their reply they also argued that:

1) That respondent court's finding that petitioners have been guilty of bargaining in
bad faith and consequently lost their status as employees of the respondent
company did not meet the meaning and comprehension of "substantial merits of the
case." Bargaining in bad faith has not been alleged in the complaint (Annex "C",
Petition) nor proven during the hearing of the can. The important and substantial
merit of the case is whether under the facts and circumstances alleged in respondent
company's pleadings, the demonstration done by the petitioners amounted to on
"illegal strike" and therefore in violation of the "no strike — no lock out" clause of the
Collective Bargaining Agreement. Petitioners respectfully reiterate and humbly
submit, that the respondent court had altogether opined and decided that such
demonstration does not amount to a strike. Hence, with that findings, petitioners
should have been absolved of the charges against them. Nevertheless, the same
respondent court disregarding, its own findings, went out of bounds by declaring the
petitioners as having "bargained in faith." The stand of the respondent court is
fallacious, as it follows the principle in logic as "non-siquitor";

2) That again respondents wanted to impress that the freedom to assemble

peaceably to air grievances against the duly constituted authorities as guaranteed in
our Constitution is subject to the limitation of the agreement in the Collective
Bargaining Agreement. The fundamental rights of the petitioners to free speech and
assembly is paramount to the provision in the Collective Bargaining Agreement and
such attempt to override the constitutional provision would be null and void. These
 fundamental rights of the petitioners were not taken into consideration in the
deliberation of the case by the respondent court;

Thus, it is clear from the foregoing contentions that petitioners are not raising any issue of due
process. They do not posit that the decision of the industrial court is null and void on that
constitutional ground. True it is that they fault the respondent court for having priced the provisions
of the collective bargaining agreement herein involved over and above their constitutional right to
peaceably assemble and petition for redress of their grievances against the abuses of the Pasig
police, but in no sense at all do they allege or contend that such action affects its jurisdiction in a
manner that renders the proceedings a nullity. In other words, petitioners themselves consider the
alleged flaw in the court's action as a mere error of judgment rather than that of jurisdiction which the
main opinion projects. For this Court to roundly and indignantly condemn private respondent now for
the grievous violation of the fundamental law the main opinion sees in its refusal to allow all its
workers to join the demonstration in question, when that specific issue has not been duly presented
to Us and properly argued, is to my mind unfair and unjust, for the simple reason that the manner
this case was brought to Us does not afford it the opportunity to be heard in regard to such
supposed constitutional transgression.

To be sure, petitioners do maintain, that respondent court committed an error of jurisdiction by

finding petitioners guilty of bargaining in bad faith when the charge against them alleged in the
complaint was for having conducted a mass demonstration, which "amounted to a strike", in violation
of the Collective Bargaining Agreement, but definitely, this jurisdictional question has no
constitutional color. Indeed, We can even assume for the sake of argument, that the trial judge did
err in not giving preferential importance to the fundamental freedoms invoked by the petitioners over
the management and proprietary attributes claimed by the respondent private firm — still, We cannot
rightly hold that such disregard of petitioners' priceless liberties divested His Honor of jurisdiction in
the premises. The unbending doctrine of this Court is that "decisions, erroneous or not, become final
after the period fixed by law; litigations would be endless, no questions would be finally settled; and
titles to property would become precarious if the losing party were allowed to reopen them at any
time in the future".
3

I only have to add to this that the fact that the error is in the interpretation, construction or application
of a constitutional precept not constituting a denial of due process, should not make any difference.
Juridically, a party cannot be less injured by an overlooked or erroneously sanctioned violation of an
ordinary statute than by a misconstrued or constitutional injunction affecting his individual, freedoms.
In both instances, there is injustice which should be intolerable were it not for the more paramount
considerations that inform the principle of immutability of final judgments. I dare say this must be the
reason why, as I have already noted, the main opinion does not cite any constitutional provision, law
or rule or any judicial doctrine or principle supporting its basic holding that infringement of
constitutional guarantees, other than denial of due process, divests courts of jurisdiction to render
valid judgments.

In this connection, it must be recalled that the teaching of Philippine Association of Colleges
and Universities vs. Secretary of Education,  following Santiago vs. Far Eastern Broadcasting,  is that
4 5

"it is one of our (the Supreme Court's) decisional practices that unless a constitutional point is
specifically raised, insisted upon and adequately argued, the court will not consider it". In the case at
bar, the petitioners have not raised, they are not insisting upon, much less have they adequately
argued the constitutional issues so extendedly and ably discussed in the main opinion.

Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous
resolution by a court of a constitutional issue not amounting to a denial of due process renders its
judgment or decision null and void, and, therefore, subject to attack even after said judgment or
decision has become final and executory. I have actually tried to bring myself into agreement with
the views of the distinguished and learned writer of the main opinion, if only to avoid dissenting from
his well prepared thesis, but its obvious incongruity with settled jurisprudence always comes to the
fore to stifle my effort.

As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners under the
authority of our constitutionally irreducible appellate jurisdiction under Section 2(5) of Article VII of
the Philippines  (reenacted practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only
6

to realize upon further reflection that the very power granted to us to review decisions of lower courts
involving questions of law(and these include constitutional issues not affecting the validity of
statutes, treaty, executive agreement, etc.) is not unqualified but has to be exercised only in the
manner provided in the law of the Rules of Court. In other words, before We can exercise appellate
jurisdiction over constitutional issues, no matter how important they may be, there must first be a
showing of compliance with the applicable procedural law or rules, among them, those governing
appeals from the Court of Industrial Relations involved herein. Consequently, if by law or rule, a
judgment of the industrial court is already final and executory, this Court would be devoid of power
and authority to review, much less alter or modify the same, absent any denial of due process or
fatal defect of jurisdiction. It must be borne in mind that the situation confronting Us now is not
merely whether or not We should pass upon a question or issue not specifically raised by the party
concerned, which, to be sure, could be enough reason to dissuade Us from taking pains in resolving
the same; rather, the real problem here is whether or not We have jurisdiction to entertain it. And, in
this regard, as already stated earlier, no less than Justice Conrado Sanchez, the writer of
Chavez, supra., which is being relied upon by the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square applicability to the facts of this case, We have
no choice but to follow, that is, that in view of reconsideration but even their argument supporting the
same within the prescribed period, "the judgment (against them)has become final, beyond recall".

Indeed, when I consider that courts would be useless if the finality and enforceability of their
judgments are made contingent on the correctness thereof from the constitutional standpoint, and
that in truth, whether or not they are correct is something that is always dependent upon combined
opinion of the members of the Supreme Court, which in turn is naturally as changeable as the
members themselves are changed, I cannot conceive of anything more pernicious and destructive to
a trustful administration of justice than the idea that, even without any showing of denial of due
process or want of jurisdiction of the court, a final and executory judgment of such court may still be
set aside or reopened in instances other than those expressly allowed by Rule 38 and that of
extrinsic fraud under Article 1146(1) of the Civil Code.  And just to emphasize the policy of the law of
7

respecting judgments once they have become final, even as this Court has ruled that final decisions
are mute in the presence of fraud which the law abhors,  it is only when the fraud is extrinsic and not
8

intrinsic that final and executory judgments may be set aside,  and this only when the remedy is
9

sought within the prescriptive period.  10

Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776:

Litigation must end and terminate sometime and somewhere, and it is essential to an
effective and efficient administration of justice that once a judgment has become
final, the winning party be not, through a mere subterfuge, deprived of the fruits of
the verdict. Courts must therefore guard against any scheme calculated to bring
about that result. Constituted as they are to put an end to controversies, courts
should frown upon any attempt to prolong them.

Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus:
 ... Public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts should become final at some definite date fixed by law. The very
object for which courts were instituted was to put an end to controversies. To fulfill
this purpose and to do so speedily, certain time limits, more or less arbitrary, have to
be set up to spur on the slothful. 'If a vacillating, irresolute judge were allowed to thus
keep causes ever within his power, to determine and redetermine them term after
term, to bandy his judgments about from one party to the other, and to change his
conclusions as freely and as capriciously as a chamelon may change its hues, then
litigation might become more intolerable than the wrongs it is intended to redress.'
(See Arnedo vs. Llorente and Liongson (1911), 18 Phil., 257.).

My disagreement with the dissenters in Republic vs. Judge de los Angeles,

L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final
judgments but rather on the correct interpretation of the contents of the judgment in question therein.
Relevantly to this case at bar, I said then:

The point of res adjudicata discussed in the dissents has not escaped my attention.
Neither am I overlooking the point of the Chief Justice regarding the dangerous and
inimical implications of a ruling that would authorize the revision, amendment or
alteration of a final and executory judgment. I want to emphasize that my position in
this opinion does not detract a whit from the soundness, authority and binding force
of existing doctrines enjoining any such modifications. The public policy of
maintaining faith and respect in judicial decisions, which inform said doctrines, is
admittedly of the highest order. I am not advocating any departure from them. Nor
am I trying to put forth for execution a decision that I believe should have been rather
than what it is. All I am doing is to view not the judgment of Judge Tengco but the
decision of this Court in G.R. No. L-20950, as it is and not as I believe it should have
been, and, by opinion, I would like to guide the court a quo as to what, in my own
view, is the true and correct meaning and implications of decision of this Court, not
that of Judge Tengco's.

The main opinion calls attention to many instant precisely involving cases in the industrial court,
wherein the Court refused to be constrained by technical rules of procedure in its determination to
accord substantial justice to the parties I still believe in those decisions, some of which were penned
by me. I am certain, however, that in none of those precedents did this Court disturb a judgment
already final and executory. It too obvious to require extended elucidation or even reference any
precedent or authority that the principle of immutability of final judgments is not a mere technicality,
and if it may considered to be in a sense a procedural rule, it is one that is founded on public policy
and cannot, therefore, yield to the ordinary plea that it must give priority to substantial justice.

Apparently vent on looking for a constitutional point of due process to hold on, the main opinion goes
far as to maintain that the long existing and constantly applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations, "as applied in this case does not implement on
reinforce or strengthen the constitutional rights affected, but instead constricts the same to the point
of nullifying the enjoyment thereof by the petitioning employees. Said Court on Industrial Relations
Rule, promulgated as it was pursuant to mere legislative delegation, is unreasonable and therefore
is beyond the authority granted by the Constitution and the law. A period of five (5) days within which
to file a motion for reconsideration is too short, especially for the aggrieve workers, who usually do
not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeal
and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re-
hearing or reconsideration (Sec. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of
Court). The delay in the filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of
Industrial Relations Rule insofar as circumstances of the instant case are concerned."

I am afraid the zeal and passion of these arguments do not justify the conclusion suggested. Viewed
objectively, it can readily be seen that there can hardly be any factual or logical basis for such a
critical view of the rule in question. Said rule provides:

MOTIONS FOR RECONSIDERATION

Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the
date on which he receives notice of the order or decision, object of the motion for
reconsideration, the same to be verified under oath with respect to the correctness of
the allegations of fact, and serving a copy thereof, personally or by registered mail,
on the adverse party. The latter may file an answer, in six (6) copies, duly verified
under oath.

Sec. 16. Both the motion and the answer shall be submitted with arguments
supporting the same. If the arguments can not be submitted simultaneously with said
motions, upon notice Court, the movant shall file same within ten (10) days from the
date of the filing of his motion for reconsideration. The adverse party shall also file
his answer within ten (10) days from the receipt by him of a copy of the arguments
submitted by the movant.

Sec. 17. After an answer to the motion is registered, or after ten (10) days from the
receipt of the arguments in support of said motion having been filed, the motion shall
be deemed submitted for resolution of the Court in banc, unless it is considered
necessary to bear oral arguments, in which case the Court shall issue the
corresponding order or notice to that effect.

Failure to observe the above-specified periods shall be sufficient cause for dismissal
of the motion for reconsideration or striking out of the answer and/or the supporting
arguments, as the case may be. (As amended April 20, 1951, Court of Industrial
Relations.).

As implemented and enforced in actual practice, this rule, as everyone acquainted with proceedings
in the industrial court well knows, precisely permits the party aggrieved by a judgment to file no more
than a pro-forma motion for reconsideration without any argument or lengthy discussion and with
barely a brief statement of the fundamental ground or grounds therefor, without prejudice to
supplementing the same by making the necessary exposition, with citations laws and authorities, in
the written arguments the be filed (10) days later. In truth, such a pro-forma motion has to effect of
just advising the court and the other party that the movant does not agree with the judgment due to
fundamental defects stated in brief and general terms. Evidently, the purpose of this requirement is
to apprise everyone concerned within the shortest possible time that a reconsideration is to sought,
and thereby enable the parties concerned to make whatever adjustments may be warranted by the
situation, in the meanwhile that the litigation is prolonged. It must borne in mind that cases in the
industrial court may involve affect the operation of vital industries in which labor-management
problems might require day-to-day solutions and it is to the best interests of justice and concerned
that the attitude of each party at every imports juncture of the case be known to the other so that
both avenues for earlier settlement may, if possible, be explored.

There can be no reason at all to complain that the time fixed by the rule is short or inadequate. In
fact, the motion filed petitioners was no more than the following:
 MOTION FOR RECONSIDERATION

COME NOW movant respondents, through counsel, to this Honorable Court most
respectfully moves for the RECONSIDERATION of the Order of this Honorable Court
dated September 17, 1969 on the ground that the same is not in accordance with
law, evidence and facts adduced during the hearing of the above entitled case.

Movant-respondents most respectfully move for leave to file their respective

arguments within ten (10) days pursuant to Section 15, 16 & 17 as amended of the
Rules of Court.

WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be

admitted.

Manila, September 27, 1969.

To say that five (5) days is an unreasonable period for the filing of such a motion is to
me simply incomprehensible. What worse in this case is that petitioners have not
even taken the trouble of giving an explanation of their inability to comply with the
rule. Not only that, petitioners were also late five (5) days in filing their written
arguments in support of their motion, and, the only excuse offered for such delay is
that both the President of the Union and the office clerk who took charge of the
matter forgot to do what they were instructed to do by counsel, which, according to
this Court, as I shall explain anon "is the most hackneyed and habitual subterfuge
employed by litigants who fail to observe the procedural requirements prescribed by
the Rules of Court". (Philippine Airlines, Inc. vs. Arca, infra). And yet, very
indignantly, the main opinion would want the Court to overlook such nonchalance
and indifference.

In this connection, I might add that in my considered opinion, the rules fixing periods for the finality of
judgments are in a sense more substantive than procedural in their real nature, for in their operation
they have the effect of either creating or terminating rights pursuant to the terms of the particular
judgment concerned. And the fact that the court that rendered such final judgment is deprived of
jurisdiction or authority to alter or modify the same enhances such substantive character. Moreover,
because they have the effect of terminating rights and the enforcement thereof, it may be said that
said rules partake of the nature also of rules of prescription, which again are substantive. Now, the
twin predicates of prescription are inaction or abandonment and the passage of time or a prescribed
period. On the other hand, procrastination or failure to act on time is unquestionably a form of
abandonment, particularly when it is not or cannot be sufficiently explained. The most valuable right
of a party may be lost by prescription, and be has no reason to complain because public policy
demands that rights must be asserted in time, as otherwise they can be deemed waived.

I see no justification whatsoever for not applying these self-evident principles to the case of
petitioners. Hence, I feel disinclined to adopt the suggestion that the Court suspend, for the
purposes of this case the rules aforequoted of the Court of Industrial Relations. Besides, I have
grave doubts as to whether we can suspend rules of other courts, particularly that is not under our
supervisory jurisdiction, being administrative agency under the Executive Department Withal, if, in
order to hasten the administration of substance justice, this Court did exercise in some instances its
re power to amend its rules, I am positively certain, it has done it for the purpose of reviving a case
in which the judo has already become final and executory.
Before closing, it may be mentioned here, that as averred their petition, in a belated effort to salvage
their Petitioners filed in the industrial court on October 31, 1969 a Petition for relief alleging that their
failure to file "Arguments in Support of their Motion for Reconsideration within the reglementary
period or five (5), if not seven (7), days late "was due to excusable negligence and honest mistake
committed by the President of the respondent Union and on office clerk of the counsel for
respondents as shown attested in their respective affidavits", (See Annexes K, and K-2) which in
brief, consisted allegedly of the President's having forgotten his appointment with his lawyer "despite
previous instructions and of the said office employee having also coincidentally forgotten "to do the
work instructed (sic) to (him) by Atty. Osorio" because he "was busy with clerical jobs". No sympathy
at all can be evoked these allegations, for, under probably more justification circumstances, this
Court ruled out a similar explanation previous case this wise:

We find merit in PAL's petition. The excuse offered respondent Santos as reason for
his failure to perfect in due time appeal from the judgment of the Municipal Court,
that counsel's clerk forgot to hand him the court notice, is the most hackneyed and
habitual subterfuge employed by litigants who fail to observe procedural
requirements prescribed by the Rules of Court. The uncritical acceptance of this kind
of common place excuses, in the face of the Supreme Court's repeated rulings that
they are neither credible nor constitutive of excusable negligence (Gaerlan vs.
Bernal, L-4039, 29 January 1952; Mercado vs. Judge Domingo, L-19457, December
1966) is certainly such whimsical exercise of judgment to be a grave abuse of
discretion. (Philippine Air Lines, Inc. Arca, 19 SCRA 300.)

For the reason, therefore, that the judgment of the industrial court sought to be reviewed in the
present case has already become final and executory, nay, not without the fault of the petitioners,
hence, no matter how erroneous from the constitutional viewpoint it may be, it is already beyond
recall, I vote to dismiss this case, without pronouncement as to costs.

TEEHANKEE, J., concurring:

For having carried out a mass demonstration at Malacañang on March 4, 1969 in protest against
alleged abuses of the Pasig police department, upon two days'  prior notice to respondent employer company, as
against the latter's insistence that the first shift 1 should not participate but instead report for work, under pain of dismissal, the industrial court
ordered the dismissal from employment of the eight individual petitioners as union officers and organizers of the mass demonstration.

Respondent court's order finding petitioner union guilty on respondent's complaint of bargaining in
bad faith and unfair labor practice for having so carried out the mass demonstration, notwithstanding
that it concededly was not a declaration of strike nor directed in any manner against respondent
employer, and ordering the dismissal of the union office manifestly constituted grave abuse of
discretion in fact and in law.

There could not be, in fact, bargaining in bad faith nor unfair labor practice since respondent firm
conceded that "the demonstration is an inalienable right of the union guaranteed' by the Constitution"
and the union up to the day of the demonstration pleaded by cablegram to the company to excuse
the first shift and allow it to join the demonstration in accordance with their previous requests.

Neither could there be, in law, a willful violation of the collective bargaining agreement's "no-strike"
clause as would warrant the union leaders' dismissal, since as found by respondent court itself the
mass demonstration was not a declaration of a strike, there being no industrial dispute between the
protagonists, but merely the occurrence of a temporary stoppage of work" to enable the workers to
exercise their constitutional rights of free expression, peaceable assembly and petition for redress of
grievance against alleged police excesses.
Respondent court's en banc resolution dismissing petitioners' motion for reconsideration for having
been filed two days late, after expiration of the reglementary five-day period fixed by its rules, due to
the negligence of petitioners' counsel and/or the union president should likewise be set aside as a
manifest act of grave abuse of discretion. Petitioners' petition for relief from the normal adverse
consequences of the late filing of their motion for reconsideration due to such negligence — which
was not acted upon by respondent court — should have been granted, considering the monstrous
injustice that would otherwise be caused the petitioners through their summary dismissal from
employment, simply because they sought in good faith to exercise basic human rights guaranteed
them by the Constitution. It should be noted further that no proof of actual loss from the one-day
stoppage of work was shown by respondent company, providing basis to the main opinion's premise
that its insistence on dismissal of the union leaders for having included the first shift workers in the
mass demonstration against its wishes was but an act of arbitrary vindictiveness.

Only thus could the basic constitutional rights of the individual petitioners and the constitutional
injunction to afford protection to labor be given true substance and meaning. No person may be
deprived of such basic rights without due process — which is but "responsiveness to the supremacy
of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided ... Due process is thus hostile to any official action marred by lack of
reasonableness. Correctly it has been identified as freedom from arbitrariness." 2

Accordingly, I vote for the setting aside of the appealed orders of the respondent court and concur in
the judgment for petitioners as set forth in the main opinion.

Separate Opinions

BARREDO, J., dissenting:

I bow in respectful and sincere admiration, but my sense of duty compels me to dissent.

The background of this case may be found principally in the stipulation of facts upon which the
decision under review is based. It is as follows:

1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation

existing and operating under and by virtue of the laws of the Philippines with
corporate address at 666 Muelle de Binondo, Manila, which is the employer of
respondent;

2. That Philippine Blooming Mills Employees Organization PBMEO for short, is a

legitimate labor organization, and the respondents herein are either officers of
respondent PBMEO or members thereof;

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacañang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM — 2:00 PM workers as well
as those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM
in the morning of March 4, 1969;
 4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur
L. Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all department and section heads.
For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union panel, confirmed the planned demonstration
and stated that the demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the demonstration
has nothing to do with the Company because the union has no quarrel or dispute
with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager,

informed PBMEO that the demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however, that any demonstration for
that matter should not unduly prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon, warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly the officers
present who are the organizers of the demonstration, who shall fail to report for work
the following morning (March 4, 1969) shall be dismissed, because such failure is a
violation of the existing CBA and, therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked.
Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and Florencio Padrigano. In
this afternoon meeting of March 3, 1969, Company reiterated and appealed to the
PBMEO representatives that while all workers may join the Malacañang
demonstration, the workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work; and thus utilize
the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA,
particularly Article XXIV "NO LOCKOUT — NO STRIKE". All those who will not follow
this warning of the Company shall be dismissed; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather too late to change their
plans inasmuch as the Malacañang demonstration will be held the following morning;
and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are
as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.

Additionally, the trial court found that "the projected demonstration did in fact occur and in the
process paralyzed to a large extent the operations of the complainant company". (p. 5, Annex F).

Upon these facts the Prosecution Division of the Court of Industrial Relations filed with said court a
complaint for Unfair Labor Practice against petitioners charging that: .
 3. That on March 4, 1969, respondents (petitioners herein) particularly those in the
first shift, in violation of the existing collective bargaining agreement and without filing
the necessary notice as provided for by law, failed to report for work, amounting to a
declaration of strike;

4. That the above acts are in violation of Section 4(a) subparagraph 6, in relation to
Sections 13, 14 and 15 of Republic Act No. 875, and of the collective bargaining
agreement. (Pars. 3 and 4, Annex C.)

After due hearing, the court rendered judgment, the dispositive part of which read's:

IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees

Organization is found guilty of bargaining in bad faith and is hereby ordered to cease
and desist from further committing the same and its representatives namely:
respondent Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo
Monsod who are directly responsible for perpetrating this unfair labor practice act,
are hereby considered to have lost their status as employees of the Philippine
Blooming Mills, Inc. (p. 8, Annex F.)

Although it is alleged in the petition herein that petitioners were notified of this decision on
September 23, 1969, there seems to be no serious question that they were actually served therewith
on September 22, 1969. In fact, petitioners admitted this date of notice in paragraph 2 of their
Petition for Relief dated October 30, 1969 and filed with the industrial court on the following day.
(See Annex K.)

It is not controverted that it was only on September 29, 1969, or seven (7) days after they were
notified of the court's decision, that petitioners filed their motion for reconsideration with the industrial
court; as it is also not disputed that they filed their "Arguments in Support of the Respondents'
Motion for Reconsideration" only on October 14, 1969. (See Annex I.) In other words, petitioners'
motion for reconsideration was filed two (2) days after the lapse of the five (5) day period provided
for the filing thereof in the rules of the Court of Industrial Relations, whereas the "Arguments" were
filed five (5) days after the expiration of the period therefor also specified in the same rules.

Accordingly, the first issue that confronts the Court is the one raised by respondent private firm,
namely, that in view of the failure of petitioners to file not only their motion for reconsideration but
also their arguments in support thereof within the periods respectively fixed in the rules therefor, the
Court of Industrial Relations acted correctly and within the law in rendering and issuing its impugned
order of October 9, 1969 dismissing petitioners' motion for reconsideration.

Respondent's contention presents no problem. Squarely applicable to the facts hereof is the decision
of this Court in Elizalde & Co. Inc. vs. Court of Industrial Relations  wherein it was ruled that:
1

August 6, 1963. Petitioner received a copy of the decision of the then Associate
Judge Arsenio I. Martinez, the dispositive part of which was set forth earlier in this
opinion.

August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were
advanced in support thereof.
August 21, 1963. Petitioner moved for additional time to file its arguments in support
of its motion to reconsider.

August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion
seeking reconsideration.

September 16, 1963. CIR en banc resolved to dismiss the motion for

reconsideration. Ground therefor was that the arguments were filed out of time.

October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the
present petition with this Court.

Upon respondent Perlado's return and petitioner's brief (respondents did not file their
brief), the case is now before us for resolution.

1. That the judgment appealed from is a final judgment — not merely an interlocutory
order — there is no doubt. The fact that there is need for computation of respondent
Perlado's overtime pay would not render the decision incomplete. This in effect is the
holding of the Court in Pan American World Airways System (Philippines) vs. Pan
American Employees Association, which runs thus: 'It is next contended that in
ordering the Chief of the Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated its judicial functions and
thereby rendered an incomplete decision. We do not believe so. Computation of the
overtime pay involves a mechanical function, at most. And the report would still have
to be submitted to the Industrial Court for its approval, by the very terms of the order
itself. That there was no specification of the amount of overtime pay in the decision
did not make it incomplete, since this matter should necessarily be made clear
enough in the implementation of the decision (see Malate Taxicab & Garage, Inc. vs.
CIR, et al.,
L-8718, May 11, 1956).

2. But has that judgment reached the stage of finality in the sense that it can no
longer, be disturbed?

CIR Rules of Procedure, as amended, and the jurisprudence of this Court both
answer the question in the affirmative.

Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment
of the trial judge must do so within five (5) days from the date on which he received
notice of the decision, subject of the motion. Next follows Section 16 which says that
the motion must be submitted with arguments supporting the same. But if said
arguments could not be submitted simultaneously with the motion, the same section
commands the 'the movant shall file the same within ten (10) days from the date of
the filing of his motion for reconsideration.' Section 17 of the same rules admonishes
a movant that "(f)ailure to observe the above-specified periods shall be sufficient
cause for dismissal of the motion for reconsideration or striking out of the answer
and/or the supporting arguments, as the case may be".

Not that the foregoing rules stand alone. Jurisprudence has since stabilized the
enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a
pro forma motion for reconsideration was filed out of time its denial is in order
pursuant to CIR rules, regardless of whether the arguments in support of said motion
 were or were not filed on time. Pangasinan Employees Laborers & Tenants
Association (PELTA) vs. Martinez, (L-13846, May 20, 1960) pronounced that where
a motion to reconsider is filed out of time, the order or decision subject of
reconsideration comes final. And so also, where the arguments in support of the
motion for reconsideration are filed beyond the ten-day reglementary period, the pre
forma motion for reconsideration although seasonably filed must nevertheless be
denied. This in essence is our ruling in Local 7, Press & Printing Free Workers
(FFW) vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of
Industrial Relations, is that where the motion for reconsideration is denied upon the
ground that the arguments in support thereof were filed out of time, the order or
decision subject of the motion becomes "final and unappealable".

We find no difficulty in applying the foregoing rules and pronouncements of this Court
in the case before us. On August 6, petitioner received a copy of the judgment of
Judge Arsenio I. Martinez aforesaid. Petitioner's motion to reconsider — without
arguments in support thereof — of August 12 was filed on time. For, August 11, the
end of the five-day reglementary period to file a motion for reconsideration, was a
Sunday. But, actually, the written arguments in support of the said motion were
submitted to the court on August 27. The period from August 12 to August 27, is a
space of fifteen (15) days. Surely enough, said arguments were filed out of time —
five (5) days late. And the judgment had become final.

3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of
time within which to present its arguments in support of its motion. Counsel in his
petition before this Court pleads that the foregoing motion was grounded on the
'extremely busy and difficult schedule of counsel which would not enable him to do
so within the stated ten-day reglementary period. The arguments were only filed on
August 27 — five (5) days late, as aforesaid.

The foregoing circumstances will not avail petitioner any. It is to be noted that the
motion for expansion of time was filed only on August 21, that is, one day before the
due date which is August 22. It was petitioner's duty to see to it that the court act on
this motion forthwith or at least inquire as to the fate thereof not later than the 22nd of
August. It did not. It merely filed its arguments on the 27th.

To be underscored at this point is that "obviously to speed up the disposition of

cases", CIR "has a standing rule against the extension of the ten-day period for filing
supporting arguments". That no-extension policy should have placed petitioner on
guard. It should not have simply folded its arms, sit by supinely and relied on the
court's generosity. To compound petitioner's neglect, it filed the arguments only on
August 27, 1953, knowing full well that by that time the reglementary period had
expired.

Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing
the motion for reconsideration on the ground that the supporting arguments were
filed out of time. That ruling in effect denied the motion for extension.

We rule that CIR's judgment has become final and unappealable. We may not review
the same.

Notwithstanding this unequivocal and unmistakable precedent, which has not been in any way
modified, much less revoked or reversed by this Court, the main opinion has chosen not only to go
into the merits of petitioners' pose that the respondent court erred in holding them guilty of
bargaining in bad faith but also to ultimately uphold petitioners' claim for reinstatement on
constitutional grounds.

Precisely because the conclusions of the main opinion are predicated on an exposition of the
constitutional guarantees of freedoms of speech and peaceful assembly for redress of grievances,
so scholarly and masterful that it is bound to overwhelm Us unless We note carefully the real issues
in this case, I am constrained, over and above my sincere admiration for the eloquence and zeal of
Mr. Justice Makasiar's brilliant dissertation, to dutifully state that as presented by petitioners
themselves and in the light of its attendant circumstances, this case does not call for the resolution
of any constitutional issue. Admittedly, the invocation of any constitutional guarantee, particularly
when it directly affects individual freedoms enshrined in the bill of rights, deserves the closest
attention of this Court. It is my understanding of constitutional law and judicial practices related
thereto, however, that even the most valuable of our constitutional rights may be protected by the
courts only when their jurisdiction over the subject matter is unquestionably established and the
applicable rules of procedure consistent with substantive and procedural due process are observed.
No doubt no constitutional right can be sacrificed in the altar of procedural technicalities, very often
fittingly downgraded as niceties but as far as I know, this principle is applied to annul or set aside
final judgments only in cases wherein there is a possible denial of due process. I have not come
across any instance, and none is mentioned or cited in the well-documented main opinion, wherein a
final and executory judgment has been invalidated and set aside upon the ground that the same has
the effect of sanctioning the violation of a constitutional right, unless such violation amounts to a
denial of due process.

Without support from any provision of the constitution or any law or from any judicial precedent or
reason of principle, the main opinion nudely and unqualifiedly asserts, as if it were universally
established and accepted as an absolute rule, that the violation of a constitutional right divests the
court of jurisdiction; and as a consequence its judgment is null and void and confers no
rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is mentioned almost in passing, does
uphold the proposition that "relief from a criminal conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus proceedings even after the finality of the
judgment". And, of course, Chavez is correct; as is also Abriol vs. Homeres  which, in principle,
2

served as its precedent, for the very simple reason that in both of those cases, the accused were
denied due process. In Chavez, the accused was compelled to testify against himself as a witness
for the prosecution; in Abriol, the accused was denied his request to be allowed to present evidence
to establish his defense after his demurrer to the People's evidence was denied.

As may be seen, however, the constitutional issues involved in those cases are a far cry from the
one now before Us. Here, petitioners do not claim they were denied due process. Nor do they
pretend that in denying their motion for reconsideration, "the respondent Court of Industrial Relations
and private firm trenched upon any of their constitutional immunities ...," contrary to the statement to
such effect in the main opinion. Indeed, neither in the petition herein nor in any of the other pleading
of petitioners can any direct or indirect assertion be found assailing the impugned decision of the
respondent court as being null and void because it sanctioned a denial of a valued constitutional
liberty.

In their petition, petitioners state the issue for Our resolution as follows:

Petitioners herein humbly submit that the issue to be resolved is whether or not the
respondent Court en banc under the facts and circumstances, should consider the
Motion for Reconsideration filed by your petitioners.
Petitioners, therefore, in filing this petition for a writ of certiorari, humbly beg this
Honorable Court to treat this petition under Rule 43 and 65 of the Rules of Court.

xxx xxx xxx

The basic issue therefore is the application by the Court en banc of the strict and
narrow technical rules of procedure without taking into account justice, equity and
substantial merits of the case.

On the other hand, the complete argument submitted by petitioners on this point in
their brief runs thus:

III

ISSUES

1. Does the refusal to heed a warning in the exercise of a fundamental right to

peaceably assemble and petition the government for redress of grievances constitute
bargaining in bad faith? and,

Do the facts found by the court below justify the declaration and conclusion that the
union was guilty of bargaining in bad faith meriting the dismissal of the persons
allegedly responsible therefore?

2. Was there grave abuse of discretion when the respondent court refused to act one
way or another on the petition for relief from the resolution of October 9, 1969?

IV

ARGUMENT

The respondent Court erred in finding the petition union guilty of bargaining in bad
faith and consequently dismissing the persons allegedly responsible therefor,
because such conclusion is country to the evidence on record; that the dismissal of
leaders was discriminatory.

As a result of exercising the constitutional rights of freedom to assemble and petition

the duly constituted authorities for redress of their grievances, the petitioners were
charged and then condemned of bargaining in bad faith.

The findings that petitioners were guilty of bargaining in bad faith were not borne out
by the records. It was not even alleged nor proven by evidence. What has been
alleged and which the respondent company tried to prove was that the demonstration
amounted to a strike and hence, a violation of the provisions of the "no-lockout — no
strike" clause of the collective bargaining agreement. However, this allegation and
proof submitted by the respondent company were practically resolved when the
respondent court in the same decision stated categorically:

'The company alleges that the walkout because of the demonstration

is tantamount to a declaration of a strike. We do not think so, as the
same is not rooted in any industrial dispute although there is a
 concerted act and the occurrence of a temporary stoppage of work.'
(Emphasis supplied, p. 4, 5th paragraph, Decision.)

The respondent court's findings that the petitioner union bargained in

bad faith is not tenable because:

First, it has not been alleged nor proven by the respondent company; .

Second, before the demonstration, the petitioner union and the respondent company
convened twice in a meeting to thresh out the matter of demonstration. Petitioners
requested that the employees and workers be excused but the respondent company
instead of granting the request or even settling the matter so that the hours of work
will not be disrupted, immediately threatened the employees of mass dismissal;

Third, the refusal of the petitioner union to grant the request of the company that the
first shift shall be excluded in the demonstration is not tantamount to bargaining in
bad faith because the company knew that the officers of the union belonged to the
first shift, and that the union cannot go and lead the demonstration without their
officers. It must be stated that the company intends to prohibit its officers to lead and
join the demonstration because most of them belonged to the first shift; and

Fourth, the findings of the respondent court that the demonstration if allowed will
practically give the union the right to change the working conditions agreed in the
CBA is a conclusion of facts, opinionated and not borne by any evidence on record.
The demonstration did not practically change the terms or conditions of employment
because it was only for one (1) day and the company knew about it before it went
through. We can even say that it was the company who bargained in bad faith, when
upon representation of the Bureau of Labor not to dismiss the employees
demonstrating, the company tacitly approved the same and yet while the
demonstration was in progress, the company filed a ULP Charge and consequently
dismissed those who participated.

Records of the case show that more or less 400 members of the union participated in
the demonstration and yet, the respondent court selected the eight officers to be
dismissed from the union thus losing their status as employees of the respondent
company. The respondent court should have taken into account that the company's
action in allowing the return of more or less three hundred ninety two (392)
employees/members of the union is an act of condonation and the dismissal of the
eight (8) officers is an act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines
Employees Association, G.R. No. L-8197, Oct. 31, 1958). Seemingly, from the
opinion stated in the decision by the court, while there is a collective bargaining
agreement, the union cannot go on demonstration or go on strike because it will
change the terms and conditions of employment agreed in the CBA. It follows that
the CBA is over and above the constitutional rights of a man to demonstrate and the
statutory rights of a union to strike as provided for in Republic Act 875. This creates a
bad precedent because it will appear that the rights of the union is solely dependent
upon the CBA.

One of the cardinal primary rights which must be respected in proceedings before the
Court of Industrial Relations is that "the decision must be rendered on the evidence
presented at the hearing, or at least contained in the record and disclosed to the
parties affected." (Interstate Commerce Commission vs. L & N R. Co., 227 U.S. 88,
 33 S. Ct. 185, 57 Law ed. 431.) Only by confining the administrative tribunal to the
evidence disclosed to the parties, can the latter be protected in their rights to know
and meet the case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February
27, 1940.)

The petitioners respectfully and humbly submit that there is no scintilla of evidence to
support the findings of the respondent court that the petitioner union bargained in
bad faith. Corollary therefore, the dismissal of the individual petitioners is without
basis either in fact or in law.

Additionally, in their reply they also argued that:

1) That respondent court's finding that petitioners have been guilty of bargaining in
bad faith and consequently lost their status as employees of the respondent
company did not meet the meaning and comprehension of "substantial merits of the
case." Bargaining in bad faith has not been alleged in the complaint (Annex "C",
Petition) nor proven during the hearing of the can. The important and substantial
merit of the case is whether under the facts and circumstances alleged in respondent
company's pleadings, the demonstration done by the petitioners amounted to on
"illegal strike" and therefore in violation of the "no strike — no lock out" clause of the
Collective Bargaining Agreement. Petitioners respectfully reiterate and humbly
submit, that the respondent court had altogether opined and decided that such
demonstration does not amount to a strike. Hence, with that findings, petitioners
should have been absolved of the charges against them. Nevertheless, the same
respondent court disregarding, its own findings, went out of bounds by declaring the
petitioners as having "bargained in faith." The stand of the respondent court is
fallacious, as it follows the principle in logic as "non-siquitor";

2) That again respondents wanted to impress that the freedom to assemble

peaceably to air grievances against the duly constituted authorities as guaranteed in
our Constitution is subject to the limitation of the agreement in the Collective
Bargaining Agreement. The fundamental rights of the petitioners to free speech and
assembly is paramount to the provision in the Collective Bargaining Agreement and
such attempt to override the constitutional provision would be null and void. These
fundamental rights of the petitioners were not taken into consideration in the
deliberation of the case by the respondent court;

Thus, it is clear from the foregoing contentions that petitioners are not raising any issue of due
process. They do not posit that the decision of the industrial court is null and void on that
constitutional ground. True it is that they fault the respondent court for having priced the provisions
of the collective bargaining agreement herein involved over and above their constitutional right to
peaceably assemble and petition for redress of their grievances against the abuses of the Pasig
police, but in no sense at all do they allege or contend that such action affects its jurisdiction in a
manner that renders the proceedings a nullity. In other words, petitioners themselves consider the
alleged flaw in the court's action as a mere error of judgment rather than that of jurisdiction which the
main opinion projects. For this Court to roundly and indignantly condemn private respondent now for
the grievous violation of the fundamental law the main opinion sees in its refusal to allow all its
workers to join the demonstration in question, when that specific issue has not been duly presented
to Us and properly argued, is to my mind unfair and unjust, for the simple reason that the manner
this case was brought to Us does not afford it the opportunity to be heard in regard to such
supposed constitutional transgression.
To be sure, petitioners do maintain, that respondent court committed an error of jurisdiction by
finding petitioners guilty of bargaining in bad faith when the charge against them alleged in the
complaint was for having conducted a mass demonstration, which "amounted to a strike", in violation
of the Collective Bargaining Agreement, but definitely, this jurisdictional question has no
constitutional color. Indeed, We can even assume for the sake of argument, that the trial judge did
err in not giving preferential importance to the fundamental freedoms invoked by the petitioners over
the management and proprietary attributes claimed by the respondent private firm — still, We cannot
rightly hold that such disregard of petitioners' priceless liberties divested His Honor of jurisdiction in
the premises. The unbending doctrine of this Court is that "decisions, erroneous or not, become final
after the period fixed by law; litigations would be endless, no questions would be finally settled; and
titles to property would become precarious if the losing party were allowed to reopen them at any
time in the future".
3

I only have to add to this that the fact that the error is in the interpretation, construction or application
of a constitutional precept not constituting a denial of due process, should not make any difference.
Juridically, a party cannot be less injured by an overlooked or erroneously sanctioned violation of an
ordinary statute than by a misconstrued or constitutional injunction affecting his individual, freedoms.
In both instances, there is injustice which should be intolerable were it not for the more paramount
considerations that inform the principle of immutability of final judgments. I dare say this must be the
reason why, as I have already noted, the main opinion does not cite any constitutional provision, law
or rule or any judicial doctrine or principle supporting its basic holding that infringement of
constitutional guarantees, other than denial of due process, divests courts of jurisdiction to render
valid judgments.

In this connection, it must be recalled that the teaching of Philippine Association of Colleges
and Universities vs. Secretary of Education,  following Santiago vs. Far Eastern Broadcasting,  is that
4 5

"it is one of our (the Supreme Court's) decisional practices that unless a constitutional point is
specifically raised, insisted upon and adequately argued, the court will not consider it". In the case at
bar, the petitioners have not raised, they are not insisting upon, much less have they adequately
argued the constitutional issues so extendedly and ably discussed in the main opinion.

Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous
resolution by a court of a constitutional issue not amounting to a denial of due process renders its
judgment or decision null and void, and, therefore, subject to attack even after said judgment or
decision has become final and executory. I have actually tried to bring myself into agreement with
the views of the distinguished and learned writer of the main opinion, if only to avoid dissenting from
his well prepared thesis, but its obvious incongruity with settled jurisprudence always comes to the
fore to stifle my effort.

As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners under the
authority of our constitutionally irreducible appellate jurisdiction under Section 2(5) of Article VII of
the Philippines  (reenacted practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only
6

to realize upon further reflection that the very power granted to us to review decisions of lower courts
involving questions of law(and these include constitutional issues not affecting the validity of
statutes, treaty, executive agreement, etc.) is not unqualified but has to be exercised only in the
manner provided in the law of the Rules of Court. In other words, before We can exercise appellate
jurisdiction over constitutional issues, no matter how important they may be, there must first be a
showing of compliance with the applicable procedural law or rules, among them, those governing
appeals from the Court of Industrial Relations involved herein. Consequently, if by law or rule, a
judgment of the industrial court is already final and executory, this Court would be devoid of power
and authority to review, much less alter or modify the same, absent any denial of due process or
fatal defect of jurisdiction. It must be borne in mind that the situation confronting Us now is not
merely whether or not We should pass upon a question or issue not specifically raised by the party
concerned, which, to be sure, could be enough reason to dissuade Us from taking pains in resolving
the same; rather, the real problem here is whether or not We have jurisdiction to entertain it. And, in
this regard, as already stated earlier, no less than Justice Conrado Sanchez, the writer of
Chavez, supra., which is being relied upon by the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square applicability to the facts of this case, We have
no choice but to follow, that is, that in view of reconsideration but even their argument supporting the
same within the prescribed period, "the judgment (against them)has become final, beyond recall".

Indeed, when I consider that courts would be useless if the finality and enforceability of their
judgments are made contingent on the correctness thereof from the constitutional standpoint, and
that in truth, whether or not they are correct is something that is always dependent upon combined
opinion of the members of the Supreme Court, which in turn is naturally as changeable as the
members themselves are changed, I cannot conceive of anything more pernicious and destructive to
a trustful administration of justice than the idea that, even without any showing of denial of due
process or want of jurisdiction of the court, a final and executory judgment of such court may still be
set aside or reopened in instances other than those expressly allowed by Rule 38 and that of
extrinsic fraud under Article 1146(1) of the Civil Code.  And just to emphasize the policy of the law of
7

respecting judgments once they have become final, even as this Court has ruled that final decisions
are mute in the presence of fraud which the law abhors,  it is only when the fraud is extrinsic and not
8

intrinsic that final and executory judgments may be set aside,  and this only when the remedy is
9

sought within the prescriptive period. 10

Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776:

Litigation must end and terminate sometime and somewhere, and it is essential to an
effective and efficient administration of justice that once a judgment has become
final, the winning party be not, through a mere subterfuge, deprived of the fruits of
the verdict. Courts must therefore guard against any scheme calculated to bring
about that result. Constituted as they are to put an end to controversies, courts
should frown upon any attempt to prolong them.

Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus:

... Public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts should become final at some definite date fixed by law. The very
object for which courts were instituted was to put an end to controversies. To fulfill
this purpose and to do so speedily, certain time limits, more or less arbitrary, have to
be set up to spur on the slothful. 'If a vacillating, irresolute judge were allowed to thus
keep causes ever within his power, to determine and redetermine them term after
term, to bandy his judgments about from one party to the other, and to change his
conclusions as freely and as capriciously as a chamelon may change its hues, then
litigation might become more intolerable than the wrongs it is intended to redress.'
(See Arnedo vs. Llorente and Liongson (1911), 18 Phil., 257.).

My disagreement with the dissenters in Republic vs. Judge de los Angeles,

L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final
judgments but rather on the correct interpretation of the contents of the judgment in question therein.
Relevantly to this case at bar, I said then:

The point of res adjudicata discussed in the dissents has not escaped my attention.
Neither am I overlooking the point of the Chief Justice regarding the dangerous and
 inimical implications of a ruling that would authorize the revision, amendment or
alteration of a final and executory judgment. I want to emphasize that my position in
this opinion does not detract a whit from the soundness, authority and binding force
of existing doctrines enjoining any such modifications. The public policy of
maintaining faith and respect in judicial decisions, which inform said doctrines, is
admittedly of the highest order. I am not advocating any departure from them. Nor
am I trying to put forth for execution a decision that I believe should have been rather
than what it is. All I am doing is to view not the judgment of Judge Tengco but the
decision of this Court in G.R. No. L-20950, as it is and not as I believe it should have
been, and, by opinion, I would like to guide the court a quo as to what, in my own
view, is the true and correct meaning and implications of decision of this Court, not
that of Judge Tengco's.

The main opinion calls attention to many instant precisely involving cases in the industrial court,
wherein the Court refused to be constrained by technical rules of procedure in its determination to
accord substantial justice to the parties I still believe in those decisions, some of which were penned
by me. I am certain, however, that in none of those precedents did this Court disturb a judgment
already final and executory. It too obvious to require extended elucidation or even reference any
precedent or authority that the principle of immutability of final judgments is not a mere technicality,
and if it may considered to be in a sense a procedural rule, it is one that is founded on public policy
and cannot, therefore, yield to the ordinary plea that it must give priority to substantial justice.

Apparently vent on looking for a constitutional point of due process to hold on, the main opinion goes
far as to maintain that the long existing and constantly applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations, "as applied in this case does not implement on
reinforce or strengthen the constitutional rights affected, but instead constricts the same to the point
of nullifying the enjoyment thereof by the petitioning employees. Said Court on Industrial Relations
Rule, promulgated as it was pursuant to mere legislative delegation, is unreasonable and therefore
is beyond the authority granted by the Constitution and the law. A period of five (5) days within which
to file a motion for reconsideration is too short, especially for the aggrieve workers, who usually do
not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeal
and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re-
hearing or reconsideration (Sec. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of
Court). The delay in the filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of
Industrial Relations Rule insofar as circumstances of the instant case are concerned."

I am afraid the zeal and passion of these arguments do not justify the conclusion suggested. Viewed
objectively, it can readily be seen that there can hardly be any factual or logical basis for such a
critical view of the rule in question. Said rule provides:

MOTIONS FOR RECONSIDERATION

Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the
date on which he receives notice of the order or decision, object of the motion for
reconsideration, the same to be verified under oath with respect to the correctness of
the allegations of fact, and serving a copy thereof, personally or by registered mail,
on the adverse party. The latter may file an answer, in six (6) copies, duly verified
under oath.

Sec. 16. Both the motion and the answer shall be submitted with arguments
supporting the same. If the arguments can not be submitted simultaneously with said
 motions, upon notice Court, the movant shall file same within ten (10) days from the
date of the filing of his motion for reconsideration. The adverse party shall also file
his answer within ten (10) days from the receipt by him of a copy of the arguments
submitted by the movant.

Sec. 17. After an answer to the motion is registered, or after ten (10) days from the
receipt of the arguments in support of said motion having been filed, the motion shall
be deemed submitted for resolution of the Court in banc, unless it is considered
necessary to bear oral arguments, in which case the Court shall issue the
corresponding order or notice to that effect.

Failure to observe the above-specified periods shall be sufficient cause for dismissal
of the motion for reconsideration or striking out of the answer and/or the supporting
arguments, as the case may be. (As amended April 20, 1951, Court of Industrial
Relations.).

As implemented and enforced in actual practice, this rule, as everyone acquainted with proceedings
in the industrial court well knows, precisely permits the party aggrieved by a judgment to file no more
than a pro-forma motion for reconsideration without any argument or lengthy discussion and with
barely a brief statement of the fundamental ground or grounds therefor, without prejudice to
supplementing the same by making the necessary exposition, with citations laws and authorities, in
the written arguments the be filed (10) days later. In truth, such a pro-forma motion has to effect of
just advising the court and the other party that the movant does not agree with the judgment due to
fundamental defects stated in brief and general terms. Evidently, the purpose of this requirement is
to apprise everyone concerned within the shortest possible time that a reconsideration is to sought,
and thereby enable the parties concerned to make whatever adjustments may be warranted by the
situation, in the meanwhile that the litigation is prolonged. It must borne in mind that cases in the
industrial court may involve affect the operation of vital industries in which labor-management
problems might require day-to-day solutions and it is to the best interests of justice and concerned
that the attitude of each party at every imports juncture of the case be known to the other so that
both avenues for earlier settlement may, if possible, be explored.

There can be no reason at all to complain that the time fixed by the rule is short or inadequate. In
fact, the motion filed petitioners was no more than the following:

MOTION FOR RECONSIDERATION

COME NOW movant respondents, through counsel, to this Honorable Court most
respectfully moves for the RECONSIDERATION of the Order of this Honorable Court
dated September 17, 1969 on the ground that the same is not in accordance with
law, evidence and facts adduced during the hearing of the above entitled case.

Movant-respondents most respectfully move for leave to file their respective

arguments within ten (10) days pursuant to Section 15, 16 & 17 as amended of the
Rules of Court.

WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be

admitted.

Manila, September 27, 1969.

 To say that five (5) days is an unreasonable period for the filing of such a motion is to
me simply incomprehensible. What worse in this case is that petitioners have not
even taken the trouble of giving an explanation of their inability to comply with the
rule. Not only that, petitioners were also late five (5) days in filing their written
arguments in support of their motion, and, the only excuse offered for such delay is
that both the President of the Union and the office clerk who took charge of the
matter forgot to do what they were instructed to do by counsel, which, according to
this Court, as I shall explain anon "is the most hackneyed and habitual subterfuge
employed by litigants who fail to observe the procedural requirements prescribed by
the Rules of Court". (Philippine Airlines, Inc. vs. Arca, infra). And yet, very
indignantly, the main opinion would want the Court to overlook such nonchalance
and indifference.

In this connection, I might add that in my considered opinion, the rules fixing periods for the finality of
judgments are in a sense more substantive than procedural in their real nature, for in their operation
they have the effect of either creating or terminating rights pursuant to the terms of the particular
judgment concerned. And the fact that the court that rendered such final judgment is deprived of
jurisdiction or authority to alter or modify the same enhances such substantive character. Moreover,
because they have the effect of terminating rights and the enforcement thereof, it may be said that
said rules partake of the nature also of rules of prescription, which again are substantive. Now, the
twin predicates of prescription are inaction or abandonment and the passage of time or a prescribed
period. On the other hand, procrastination or failure to act on time is unquestionably a form of
abandonment, particularly when it is not or cannot be sufficiently explained. The most valuable right
of a party may be lost by prescription, and be has no reason to complain because public policy
demands that rights must be asserted in time, as otherwise they can be deemed waived.

I see no justification whatsoever for not applying these self-evident principles to the case of
petitioners. Hence, I feel disinclined to adopt the suggestion that the Court suspend, for the
purposes of this case the rules aforequoted of the Court of Industrial Relations. Besides, I have
grave doubts as to whether we can suspend rules of other courts, particularly that is not under our
supervisory jurisdiction, being administrative agency under the Executive Department Withal, if, in
order to hasten the administration of substance justice, this Court did exercise in some instances its
re power to amend its rules, I am positively certain, it has done it for the purpose of reviving a case
in which the judo has already become final and executory.

Before closing, it may be mentioned here, that as averred their petition, in a belated effort to salvage
their Petitioners filed in the industrial court on October 31, 1969 a Petition for relief alleging that their
failure to file "Arguments in Support of their Motion for Reconsideration within the reglementary
period or five (5), if not seven (7), days late "was due to excusable negligence and honest mistake
committed by the President of the respondent Union and on office clerk of the counsel for
respondents as shown attested in their respective affidavits", (See Annexes K, and K-2) which in
brief, consisted allegedly of the President's having forgotten his appointment with his lawyer "despite
previous instructions and of the said office employee having also coincidentally forgotten "to do the
work instructed (sic) to (him) by Atty. Osorio" because he "was busy with clerical jobs". No sympathy
at all can be evoked these allegations, for, under probably more justification circumstances, this
Court ruled out a similar explanation previous case this wise:

We find merit in PAL's petition. The excuse offered respondent Santos as reason for
his failure to perfect in due time appeal from the judgment of the Municipal Court,
that counsel's clerk forgot to hand him the court notice, is the most hackneyed and
habitual subterfuge employed by litigants who fail to observe procedural
requirements prescribed by the Rules of Court. The uncritical acceptance of this kind
 of common place excuses, in the face of the Supreme Court's repeated rulings that
they are neither credible nor constitutive of excusable negligence (Gaerlan vs.
Bernal, L-4039, 29 January 1952; Mercado vs. Judge Domingo, L-19457, December
1966) is certainly such whimsical exercise of judgment to be a grave abuse of
discretion. (Philippine Air Lines, Inc. Arca, 19 SCRA 300.)

For the reason, therefore, that the judgment of the industrial court sought to be reviewed in the
present case has already become final and executory, nay, not without the fault of the petitioners,
hence, no matter how erroneous from the constitutional viewpoint it may be, it is already beyond
recall, I vote to dismiss this case, without pronouncement as to costs.

TEEHANKEE, J., concurring:

For having carried out a mass demonstration at Malacañang on March 4, 1969 in protest against
alleged abuses of the Pasig police department, upon two days'  prior notice to respondent employer company, as
against the latter's insistence that the first shift 1 should not participate but instead report for work, under pain of dismissal, the industrial court
ordered the dismissal from employment of the eight individual petitioners as union officers and organizers of the mass demonstration.

Respondent court's order finding petitioner union guilty on respondent's complaint of bargaining in
bad faith and unfair labor practice for having so carried out the mass demonstration, notwithstanding
that it concededly was not a declaration of strike nor directed in any manner against respondent
employer, and ordering the dismissal of the union office manifestly constituted grave abuse of
discretion in fact and in law.

There could not be, in fact, bargaining in bad faith nor unfair labor practice since respondent firm
conceded that "the demonstration is an inalienable right of the union guaranteed' by the Constitution"
and the union up to the day of the demonstration pleaded by cablegram to the company to excuse
the first shift and allow it to join the demonstration in accordance with their previous requests.

Neither could there be, in law, a willful violation of the collective bargaining agreement's "no-strike"
clause as would warrant the union leaders' dismissal, since as found by respondent court itself the
mass demonstration was not a declaration of a strike, there being no industrial dispute between the
protagonists, but merely the occurrence of a temporary stoppage of work" to enable the workers to
exercise their constitutional rights of free expression, peaceable assembly and petition for redress of
grievance against alleged police excesses.

Respondent court's en banc resolution dismissing petitioners' motion for reconsideration for having
been filed two days late, after expiration of the reglementary five-day period fixed by its rules, due to
the negligence of petitioners' counsel and/or the union president should likewise be set aside as a
manifest act of grave abuse of discretion. Petitioners' petition for relief from the normal adverse
consequences of the late filing of their motion for reconsideration due to such negligence — which
was not acted upon by respondent court — should have been granted, considering the monstrous
injustice that would otherwise be caused the petitioners through their summary dismissal from
employment, simply because they sought in good faith to exercise basic human rights guaranteed
them by the Constitution. It should be noted further that no proof of actual loss from the one-day
stoppage of work was shown by respondent company, providing basis to the main opinion's premise
that its insistence on dismissal of the union leaders for having included the first shift workers in the
mass demonstration against its wishes was but an act of arbitrary vindictiveness.

Only thus could the basic constitutional rights of the individual petitioners and the constitutional
injunction to afford protection to labor be given true substance and meaning. No person may be
deprived of such basic rights without due process — which is but "responsiveness to the supremacy
of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided ... Due process is thus hostile to any official action marred by lack of
reasonableness. Correctly it has been identified as freedom from arbitrariness."2

Accordingly, I vote for the setting aside of the appealed orders of the respondent court and concur in
the judgment for petitioners as set forth in the main opinion.

3. G.R. No. 156052             February 13, 2008

SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO and BONIFACIO S.

TUMBOKON, petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila, respondent.
 x----------------------x

CHEVRON PHILIPPINES INC., PETRON CORPORATION and PILIPINAS SHELL PETROLEUM

CORPORATION, movants-intervenors.

x----------------------x

DEPARTMENT OF ENERGY, movant-intervenor.

RESOLUTION

CORONA, J.:

After we promulgated our decision in this case on March 7, 2007, Chevron Philippines Inc.
(Chevron), Petron Corporation (Petron) and Pilipinas Shell Petroleum Corporation (Shell)
(collectively, the oil companies) and the Republic of the Philippines, represented by the Department
of Energy (DOE), filed their respective motions for leave to intervene and for reconsideration of the
decision.

Chevron1 is engaged in the business of importing, distributing and marketing of petroleum products
in the Philippines while Shell and Petron are engaged in the business of manufacturing, refining and
likewise importing, distributing and marketing of petroleum products in the Philippines. 2 The DOE is a
governmental agency created under Republic Act (RA) No. 7638 3 and tasked to prepare, integrate,
coordinate, supervise and control all plans, programs, projects and activities of the government
relative to energy exploration, development, utilization, distribution and conservation. 4

The facts are restated briefly as follows:

Petitioners Social Justice Society, Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon, in an
original petition for mandamus under Rule 65 of the Rules of Court, sought to compel respondent
Hon. Jose L. Atienza, Jr., then mayor of the City of Manila, to enforce Ordinance No. 8027. This
ordinance was enacted by the Sangguniang Panlungsod of Manila on November 20,
2001,5 approved by respondent Mayor on November 28, 2001, 6 and became effective on December
28, 2001 after publication.7 Sections 1 and 3 thereof state:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public
safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its
adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the
north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the
southwest, and Estero de Pandacan in the west[,] PNR Railroad in the northwest area,
Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in
the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero
St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to
Commercial I.

xxx       xxx       xxx

SEC. 3. Owners or operators of industries and other businesses, the operation of which are
no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from
the date of effectivity of this Ordinance within which to cease and desist from the operation of
businesses which are hereby in consequence, disallowed.
Ordinance No. 8027 reclassified the area described therein from industrial to commercial and
directed the owners and operators of businesses disallowed under the reclassification to cease and
desist from operating their businesses within six months from the date of effectivity of the ordinance.
Among the businesses situated in the area are the so-called "Pandacan Terminals" of the oil
companies.

On June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a
memorandum of understanding (MOU)8 with the oil companies. They agreed that "the scaling down
of the Pandacan Terminals [was] the most viable and practicable option." The Sangguniang
Panlungsod ratified the MOU in Resolution No. 97.9 In the same resolution, the Sanggunian declared
that the MOU was effective only for a period of six months starting July 25, 2002. 10 Thereafter, on
January 30, 2003, the Sanggunian adopted Resolution No. 1311 extending the validity of Resolution
No. 97 to April 30, 2003 and authorizing the mayor of Manila to issue special business permits to the
oil companies.12

This was the factual backdrop presented to the Court which became the basis of our March 7, 2007
decision. We ruled that respondent had the ministerial duty under the Local Government Code
(LGC) to "enforce all laws and ordinances relative to the governance of the city," 13 including
Ordinance No. 8027. We also held that we need not resolve the issue of whether the MOU entered
into by respondent with the oil companies and the subsequent resolutions passed by
the Sanggunian could amend or repeal Ordinance No. 8027 since the resolutions which ratified the
MOU and made it binding on the City of Manila expressly gave it full force and effect only until April
30, 2003. We concluded that there was nothing that legally hindered respondent from enforcing
Ordinance No. 8027.

After we rendered our decision on March 7, 2007, the oil companies and DOE sought to intervene
and filed motions for reconsideration in intervention on March 12, 2007 and March 21, 2007
respectively. On April 11, 2007, we conducted the oral arguments in Baguio City to hear petitioners,
respondent and movants-intervenors oil companies and DOE.

The oil companies called our attention to the fact that on April 25, 2003, Chevron had filed a
complaint against respondent and the City of Manila in the Regional Trial Court (RTC) of Manila,
Branch 39, for the annulment of Ordinance No. 8027 with application for writs of preliminary
prohibitory injunction and preliminary mandatory injunction. 14 The case was docketed as civil case
no. 03-106377. On the same day, Shell filed a petition for prohibition and mandamus likewise
assailing the validity of Ordinance No. 8027 and with application for writs of preliminary prohibitory
injunction and preliminary mandatory injunction. 15 This was docketed as civil case no. 03-106380.
Later on, these two cases were consolidated and the RTC of Manila, Branch 39 issued an order
dated May 19, 2003 granting the applications for writs of preliminary prohibitory injunction and
preliminary mandatory injunction:

WHEREFORE, upon the filing of a total bond of TWO MILLION (Php 2,000,000.00) PESOS,
let a Writ of Preliminary Prohibitory Injunction be issued ordering [respondent] and the City of
Manila, their officers, agents, representatives, successors, and any other persons assisting
or acting in their behalf, during the pendency of the case, to REFRAIN from taking steps to
enforce Ordinance No. 8027, and let a Writ of Preliminary Mandatory Injunction be issued
ordering [respondent] to issue [Chevron and Shell] the necessary Business Permits to
operate at the Pandacan Terminal. 16

Petron likewise filed its own petition in the RTC of Manila, Branch 42, also attacking the validity of
Ordinance No. 8027 with prayer for the issuance of a writ of preliminary injunction and/or temporary
restraining order (TRO). This was docketed as civil case no. 03-106379. In an order dated August 4,
2004, the RTC enjoined the parties to maintain the status quo. 17

Thereafter, in 2006, the city council of Manila enacted Ordinance No. 8119, also known as the
Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006. 18 This was approved by
respondent on June 16, 2006. 19

Aggrieved anew, Chevron and Shell filed a complaint in the RTC of Manila, Branch 20, asking for the
nullification of Ordinance No. 8119. 20 This was docketed as civil case no. 06-115334. Petron filed its
own complaint on the same causes of action in the RTC of Manila, Branch 41. 21 This was docketed
as civil case no. 07-116700. 22 The court issued a TRO in favor of Petron, enjoining the City of Manila
and respondent from enforcing Ordinance No. 8119. 23

Meanwhile, in civil case no. 03-106379, the parties filed a joint motion to withdraw complaint and
counterclaim on February 20, 2007. 24 In an order dated April 23, 2007, the joint motion was granted
and all the claims and counterclaims of the parties were withdrawn. 25

Given these additional pieces of information, the following were submitted as issues for our
resolution:

1. whether movants-intervenors should be allowed to intervene in this case; 26

2. whether the following are impediments to the execution of our March 7, 2007 decision:

(a) Ordinance No. 8119, the enactment and existence of which were not previously
brought by the parties to the attention of the Court and

(b) writs of preliminary prohibitory injunction and preliminary mandatory injunction

and status quo order issued by the RTC of Manila, Branches 39 and 42 and

3. whether the implementation of Ordinance No. 8027 will unduly encroach upon the DOE’s
powers and functions involving energy resources.

During the oral arguments, the parties submitted to this Court’s power to rule on the constitutionality
and validity of Ordinance No. 8027 despite the pendency of consolidated cases involving this issue
in the RTC.27 The importance of settling this controversy as fully and as expeditiously as possible
was emphasized, considering its impact on public interest. Thus, we will also dispose of this issue
here. The parties were after all given ample opportunity to present and argue their respective
positions. By so doing, we will do away with the delays concomitant with litigation and completely
adjudicate an issue which will most likely reach us anyway as the final arbiter of all legal disputes.

Before we resolve these issues, a brief review of the history of the Pandacan Terminals is called for
to put our discussion in the proper context.

History Of The Pandacan Oil Terminals

Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig river. At
the turn of the twentieth century, Pandacan was unofficially designated as the industrial center of
Manila. The area, then largely uninhabited, was ideal for various emerging industries as the nearby
river facilitated the transportation of goods and products. In the 1920s, it was classified as an
industrial zone.28 Among its early industrial settlers were the oil companies. Shell established its
installation there on January 30, 1914. 29 Caltex (now Chevron) followed suit in 1917 when the
company began marketing its products in the country. 30 In 1922, it built a warehouse depot which
was later converted into a key distribution terminal. 31 The corporate presence in the Philippines of
Esso (Petron’s predecessor) became more keenly felt when it won a concession to build and
operate a refinery in Bataan in 1957. 32 It then went on to operate a state-of-the-art lube oil blending
plant in the Pandacan Terminals where it manufactures lubes and greases. 33

On December 8, 1941, the Second World War reached the shores of the Philippine Islands.
Although Manila was declared an open city, the Americans had no interest in welcoming the
Japanese. In fact, in their zealous attempt to fend off the Japanese Imperial Army, the United States
Army took control of the Pandacan Terminals and hastily made plans to destroy the storage facilities
to deprive the advancing Japanese Army of a valuable logistics weapon. 34 The U.S. Army burned
unused petroleum, causing a frightening conflagration. Historian Nick Joaquin recounted the events
as follows:

After the USAFFE evacuated the City late in December 1941, all army fuel storage dumps
were set on fire. The flames spread, enveloping the City in smoke, setting even the rivers
ablaze, endangering bridges and all riverside buildings. … For one week longer, the "open
city" blazed—a cloud of smoke by day, a pillar of fire by night. 35

The fire consequently destroyed the Pandacan Terminals and rendered its network of depots and
service stations inoperative.36

After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself. The
three major oil companies resumed the operation of their depots. 37 But the district was no longer a
sparsely populated industrial zone; it had evolved into a bustling, hodgepodge community. Today,
Pandacan has become a densely populated area inhabited by about 84,000 people, majority of
whom are urban poor who call it home. 38 Aside from numerous industrial installations, there are also
small businesses, churches, restaurants, schools, daycare centers and residences situated
there.39 Malacañang Palace, the official residence of the President of the Philippines and the seat of
governmental power, is just two kilometers away. 40 There is a private school near the Petron depot.
Along the walls of the Shell facility are shanties of informal settlers. 41 More than 15,000 students are
enrolled in elementary and high schools situated near these facilities. 42 A university with a student
population of about 25,000 is located directly across the depot on the banks of the Pasig river. 43

The 36-hectare Pandacan Terminals house the oil companies’ distribution terminals and depot
facilities.44 The refineries of Chevron and Shell in Tabangao and Bauan, both in Batangas,
respectively, are connected to the Pandacan Terminals through a 114-kilometer 45 underground
pipeline system.46 Petron’s refinery in Limay, Bataan, on the other hand, also services the
depot.47 The terminals store fuel and other petroleum products and supply 95% of the fuel
requirements of Metro Manila, 48 50% of Luzon’s consumption and 35% nationwide. 49 Fuel can also
be transported through barges along the Pasig river or tank trucks via the South Luzon Expressway.

We now discuss the first issue: whether movants-intervenors should be allowed to intervene in this
case.

Intervention Of The Oil Companies And The DOE Should Be Allowed In The Interest of Justice

Intervention is a remedy by which a third party, not originally impleaded in the proceedings, becomes
a litigant therein to enable him, her or it to protect or preserve a right or interest which may be
affected by such proceedings. 50 The pertinent rules are Sections 1 and 2, Rule 19 of the Rules of
Court:
 SEC. 1. Who may intervene. — A person who has a legal interest in the matter in litigation,
or in the success of either of the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property in the custody of the court
or of an officer thereof may, with leave of court, be allowed to intervene in the action. The
court shall consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and whether or not the intervenor’s rights
may be fully protected in a separate proceeding.

SEC. 2. Time to intervene. — The motion to intervene may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be
attached to the motion and served on the original parties.

Thus, the following are the requisites for intervention of a non-party:

(1) Legal interest

(a) in the matter in controversy; or

(b) in the success of either of the parties; or

I against both parties; or

(d) person is so situated as to be adversely affected by a distribution or other

disposition of property in the custody of the court or of an officer thereof;

(2) Intervention will not unduly delay or prejudice the adjudication of rights of original parties;

(3) Intervenor’s rights may not be fully protected in a separate proceeding 51 and

(g)The motion to intervene may be filed at any time before rendition of judgment by the trial
court.

For both the oil companies and DOE, the last requirement is definitely absent. As a rule, intervention
is allowed "before rendition of judgment" as Section 2, Rule 19 expressly provides. Both filed their
separate motions after our decision was promulgated. In Republic of the Philippines v. Gingoyon,52 a
recently decided case which was also an original action filed in this Court, we declared that the
appropriate time to file the motions-in-intervention was before and not after resolution of the case. 53

The Court, however, has recognized exceptions to Section 2, Rule 19 in the interest of substantial
justice:

The rule on intervention, like all other rules of procedure, is intended to make the powers of
the Court fully and completely available for justice. It is aimed to facilitate a comprehensive
adjudication of rival claims overriding technicalities on the timeliness of the filing thereof. 54

The oil companies assert that they have a legal interest in this case because the implementation of
Ordinance No. 8027 will directly affect their business and property rights. 55

[T]he interest which entitles a person to intervene in a suit between other parties must be in
the matter in litigation and of such direct and immediate character that the intervenor will
either gain or lose by direct legal operation and effect of the judgment. Otherwise, if persons
 not parties to the action were allowed to intervene, proceedings would become
unnecessarily complicated, expensive and interminable. And this would be against the policy
of the law. The words "an interest in the subject" means a direct interest in the cause of
action as pleaded, one that would put the intervenor in a legal position to litigate a fact
alleged in the complaint without the establishment of which plaintiff could not recover. 56

We agree that the oil companies have a direct and immediate interest in the implementation of
Ordinance No. 8027. Their claim is that they will need to spend billions of pesos if they are
compelled to relocate their oil depots out of Manila. Considering that they admitted knowing about
this case from the time of its filing on December 4, 2002, they should have intervened long before
our March 7, 2007 decision to protect their interests. But they did not. 57 Neither did they offer any
worthy explanation to justify their late intervention.

Be that as it may, although their motion for intervention was not filed on time, we will allow it because
they raised and presented novel issues and arguments that were not considered by the Court in its
March 7, 2007 decision. After all, the allowance or disallowance of a motion to intervene is
addressed to the sound discretion of the court before which the case is pending. 58 Considering the
compelling reasons favoring intervention, we do not think that this will unduly delay or prejudice the
adjudication of rights of the original parties. In fact, it will be expedited since their intervention will
enable us to rule on the constitutionality of Ordinance No. 8027 instead of waiting for the RTC’s
decision.

The DOE, on the other hand, alleges that its interest in this case is also direct and immediate as
Ordinance No. 8027 encroaches upon its exclusive and national authority over matters affecting the
oil industry. It seeks to intervene in order to represent the interests of the members of the public who
stand to suffer if the Pandacan Terminals’ operations are discontinued. We will tackle the issue of
the alleged encroachment into DOE’s domain later on. Suffice it to say at this point that, for the
purpose of hearing all sides and considering the transcendental importance of this case, we will also
allow DOE’s intervention.

The Injunctive Writs Are Not Impediments To The Enforcement Of Ordinance No. 8027

Under Rule 65, Section 359 of the Rules of Court, a petition for mandamus may be filed when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an office, trust or station. According to the oil
companies, respondent did not unlawfully fail or neglect to enforce Ordinance No. 8027 because he
was lawfully prevented from doing so by virtue of the injunctive writs and status quo order issued by
the RTC of Manila, Branches 39 and 42.

First, we note that while Chevron and Shell still have in their favor the writs of preliminary injunction
and preliminary mandatory injunction, the status quo order in favor of Petron is no longer in effect
since the court granted the joint motion of the parties to withdraw the complaint and counterclaim. 60

Second, the original parties failed to inform the Court about these injunctive writs. Respondent (who
was also impleaded as a party in the RTC cases) defends himself by saying that he informed the
court of the pendency of the civil cases and that a TRO was issued by the RTC in the consolidated
cases filed by Chevron and Shell. It is true that had the oil companies only intervened much earlier,
the Court would not have been left in the dark about these facts. Nevertheless, respondent should
have updated the Court, by way of manifestation, on such a relevant matter.

In his memorandum, respondent mentioned the issuance of a TRO. Under Section 5 of Rule 58 of
the Rules of Court, a TRO issued by the RTC is effective only for a period of 20 days. This is why, in
our March 7, 2007 decision, we presumed with certainty that this had already lapsed. 61 Respondent
also mentioned the grant of injunctive writs in his rejoinder which the Court, however, expunged for
being a prohibited pleading. The parties and their counsels were clearly remiss in their duties to this
Court.

In resolving controversies, courts can only consider facts and issues pleaded by the
parties.62 Courts, as well as magistrates presiding over them are not omniscient. They can only act
on the facts and issues presented before them in appropriate pleadings. They may not even
substitute their own personal knowledge for evidence. Nor may they take notice of matters except
those expressly provided as subjects of mandatory judicial notice.

We now proceed to the issue of whether the injunctive writs are legal impediments to the
enforcement of Ordinance No. 8027.

Section 3, Rule 58 of the Rules of Court enumerates the grounds for the issuance of a writ of
preliminary injunction:

SEC. 3. Grounds for issuance of preliminary injunction. ― A preliminary injunction may be

granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or nonperformance of the act or acts complained of
during the litigation would probably work injustice to the applicant; or

(g) IThat a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual.

There are two requisites for the issuance of a preliminary injunction: (1) the right to be protected
exists prima facie and (2) the acts sought to be enjoined are violative of that right. It must be proven
that the violation sought to be prevented will cause an irreparable injustice.

The act sought to be restrained here was the enforcement of Ordinance No. 8027. It is a settled rule
that an ordinance enjoys the presumption of validity and, as such, cannot be restrained by
injunction.63 Nevertheless, when the validity of the ordinance is assailed, the courts are not precluded
from issuing an injunctive writ against its enforcement. However, we have declared that the issuance
of said writ is proper only when:

... the petitioner assailing the ordinance has made out a case of unconstitutionality
strong enough to overcome, in the mind of the judge, the presumption of validity, in
addition to a showing of a clear legal right to the remedy sought.... 64 (Emphasis supplied)

Judge Reynaldo G. Ros, in his order dated May 19, 2003, stated his basis for issuing the injunctive
writs:

The Court, in resolving whether or not a Writ of Preliminary Injunction or Preliminary

Mandatory Injunction should be issued, is guided by the following requirements: (1) a clear
 legal right of the complainant; (2) a violation of that right; and (3) a permanent and urgent
necessity for the Writ to prevent serious damage. The Court believes that these requisites
are present in these cases.

There is no doubt that the plaintiff/petitioners have been legitimately operating their business
in the Pandacan Terminal for many years and they have made substantial capital investment
therein. Every year they were issued Business Permits by the City of Manila. Its operations
have not been declared illegal or contrary to law or morals. In fact, because of its vital
importance to the national economy, it was included in the Investment Priorities Plan as
mandated under the "Downstream Oil Industry Deregulation Act of 1988 (R.A. 8479). As a
lawful business, the plaintiff/petitioners have a right, therefore, to continue their operation in
the Pandacan Terminal and the right to protect their investments. This is a clear and
unmistakable right of the plaintiff/petitioners.

The enactment, therefore, of City Ordinance No. 8027 passed by the City Council of Manila
reclassifying the area where the Pandacan Terminal is located from Industrial II to
Commercial I and requiring the plaintiff/petitioners to cease and desist from the operation of
their business has certainly violated the rights of the plaintiff/petitioners to continue their
legitimate business in the Pandacan Terminal and deprived them of their huge investments
they put up therein. Thus, before the Court, therefore, determines whether the Ordinance in
question is valid or not, a Writ of Preliminary Injunction and a Writ of Mandatory Injunction be
issued to prevent serious and irreparable damage to plaintiff/petitioners. 65

Nowhere in the judge’s discussion can we see that, in addition to a showing of a clear legal
right of Chevron and Shell to the remedy sought, he was convinced that they had made out a
case of unconstitutionality or invalidity strong enough to overcome the presumption of
validity of the ordinance. Statutes and ordinances are presumed valid unless and until the courts
declare the contrary in clear and unequivocal terms.66 The mere fact that the ordinance is alleged to
be unconstitutional or invalid will not entitle a party to have its enforcement enjoined. 67 The
presumption is all in favor of validity. The reason for this is obvious:

The action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the subject and
necessitate action. The local legislative body, by enacting the ordinance, has in effect given
notice that the regulations are essential to the well being of the people . . . The Judiciary
should not lightly set aside legislative action when there is not a clear invasion of personal or
property rights under the guise of police regulation. 68

X—x—x

...[Courts] accord the presumption of constitutionality to legislative enactments, not only

because the legislature is presumed to abide by the Constitution but also because the
judiciary[,] in the determination of actual cases and controversies[,] must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.69

The oil companies argue that this presumption must be set aside when the invalidity or
unreasonableness appears on the face of the ordinance itself. 70 We see no reason to set aside the
presumption. The ordinance, on its face, does not at all appear to be unconstitutional. It reclassified
the subject area from industrial to commercial. Prima facie, this power is within the power of
municipal corporations:
 The power of municipal corporations to divide their territory into industrial, commercial and
residential zones is recognized in almost all jurisdictions inasmuch as it is derived from the
police power itself and is exercised for the protection and benefit of their inhabitants. 71

X—x—x

There can be no doubt that the City of Manila has the power to divide its territory into
residential and industrial zones, and to prescribe that offensive and unwholesome trades and
occupations are to be established exclusively in the latter zone.

xxx       xxx       xxx

Likewise, it cannot be denied that the City of Manila has the authority, derived from the police
power, of forbidding the appellant to continue the manufacture of toyo in the zone where it is
now situated, which has been declared residential.... 72

Courts will not invalidate an ordinance unless it clearly appears that it is unconstitutional. There is no
such showing here. Therefore, the injunctive writs issued in the Manila RTC’s May 19, 2003 order
had no leg to stand on.

We are aware that the issuance of these injunctive writs is not being assailed as tainted with grave
abuse of discretion. However, we are confronted with the question of whether these writs issued by
a lower court are impediments to the enforcement of Ordinance No. 8027 (which is the subject of
the mandamus petition). As already discussed, we rule in the negative.

Ordinance No. 8027 Was Not Superseded By Ordinance No. 8119

The March 7, 2007 decision did not take into consideration the passage of Ordinance No. 8119
entitled "An Ordinance Adopting the Manila Comprehensive Land Use Plan and Zoning Regulations
of 2006 and Providing for the Administration, Enforcement and Amendment thereto" which was
approved by respondent on June 16, 2006. The simple reason was that the Court was never
informed about this ordinance.

While courts are required to take judicial notice of the laws enacted by Congress, the rule with
respect to local ordinances is different. Ordinances are not included in the enumeration of matters
covered by mandatory judicial notice under Section 1, Rule 129 of the Rules of Court. 73

Although, Section 50 of RA 40974 provides that:

SEC. 50 Judicial notice of ordinances. - All courts sitting in the city shall take judicial notice of
the ordinances passed by the [Sangguniang Panglungsod].

This cannot be taken to mean that this Court, since it has its seat in the City of Manila, should have
taken steps to procure a copy of the ordinance on its own, relieving the party of any duty to inform
the Court about it.

Even where there is a statute that requires a court to take judicial notice of municipal ordinances, a
court is not required to take judicial notice of ordinances that are not before it and to which it does
not have access. The party asking the court to take judicial notice is obligated to supply the court
with the full text of the rules the party desires it to have notice of. 75 Counsel should take the initiative
in requesting that a trial court take judicial notice of an ordinance even where a statute requires
courts to take judicial notice of local ordinances.76

The intent of a statute requiring a court to take judicial notice of a local ordinance is to remove any
discretion a court might have in determining whether or not to take notice of an ordinance. Such a
statute does not direct the court to act on its own in obtaining evidence for the record and a party
must make the ordinance available to the court for it to take notice. 77

In its defense, respondent claimed that he did not inform the Court about the enactment of
Ordinance No. 8119 because he believed that it was different from Ordinance No. 8027 and that the
two were not inconsistent with each other.78

In the same way that we deem the intervenors’ late intervention in this case unjustified, we find the
failure of respondent, who was an original party here, inexcusable.

The Rule On Judicial Admissions Is Not Applicable Against Respondent

The oil companies assert that respondent judicially admitted that Ordinance No. 8027 was repealed
by Ordinance No. 8119 in civil case no. 03-106379 (where Petron assailed the constitutionality of
Ordinance No. 8027) when the parties in their joint motion to withdraw complaint and counterclaim
stated that "the issue ...has been rendered moot and academic by virtue of the passage of
[Ordinance No. 8119]."79 They contend that such admission worked as an estoppel against the
respondent.

Respondent countered that this stipulation simply meant that Petron was recognizing the validity and
legality of Ordinance No. 8027 and that it had conceded the issue of said ordinance’s
constitutionality, opting instead to question the validity of Ordinance No. 8119. 80 The oil companies
deny this and further argue that respondent, in his answer in civil case no. 06-115334 (where
Chevron and Shell are asking for the nullification of Ordinance No. 8119), expressly stated that
Ordinance No. 8119 replaced Ordinance No. 8027: 81

... Under Ordinance No. 8027, businesses whose uses are not in accord with the
reclassification were given six months to cease [their] operation. Ordinance No. 8119,
which in effect, replaced Ordinance [No.] 8027, merely took note of the time frame
provided for in Ordinance No. 8119.... Ordinance No. 8119 thus provided for an even longer
term, that is[,] seven years;82 (Emphasis supplied)

Rule 129, Section 4 of the Rules of Court provides:

Section 4. Judicial admissions. ― An admission, verbal or written, made by a party in the

course of the proceedings in the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable mistake or that no such
admission was made. (Emphasis supplied)

While it is true that a party making a judicial admission cannot subsequently take a position contrary
to or inconsistent with what was pleaded, 83 the aforestated rule is not applicable here. Respondent
made the statements regarding the ordinances in civil case nos. 03-106379 and 06-115334 which
are not "the same" as this case before us.84 To constitute a judicial admission, the admission must be
made in the same case in which it is offered.
Hence, respondent is not estopped from claiming that Ordinance No. 8119 did not supersede
Ordinance No. 8027. On the contrary, it is the oil companies which should be considered estopped.
They rely on the argument that Ordinance No. 8119 superseded Ordinance No. 8027 but, at the
same time, also impugn its (8119’s) validity. We frown on the adoption of inconsistent positions and
distrust any attempt at clever positioning under one or the other on the basis of what appears
advantageous at the moment. Parties cannot take vacillating or contrary positions regarding the
validity of a statute85 or ordinance. Nonetheless, we will look into the merits of the argument of
implied repeal.

Ordinance No. 8119 Did Not Impliedly Repeal Ordinance No. 8027

Both the oil companies and DOE argue that Ordinance No. 8119 repealed Ordinance No. 8027.
They assert that although there was no express repeal 86 of Ordinance No. 8027, Ordinance No. 8119
impliedly repealed it.

According to the oil companies, Ordinance No. 8119 reclassified the area covering the Pandacan
Terminals to "High Density Residential/Mixed Use Zone (R-3/MXD)" 87 whereas Ordinance No. 8027
reclassified the same area from Industrial II to Commercial I:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety,
and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the
land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in
the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pancacan in the
west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in
the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the
Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from
Industrial II to Commercial I. (Emphasis supplied)

Moreover, Ordinance No. 8119 provides for a phase-out of seven years:

SEC. 72. Existing Non-Conforming Uses and Buildings. - The lawful use of any building,
structure or land at the time of the adoption of this Ordinance may be continued, although
such use does not conform with the provision of the Ordinance, provided:

xxx       xxx       xxx

(g) In case the non-conforming use is an industrial use:

xxx       xxx       xxx

d. The land use classified as non-conforming shall program the phase-out and
relocation of the non-conforming use within seven (7) years from the date of
effectivity of this Ordinance. (Emphasis supplied)

This is opposed to Ordinance No. 8027 which compels affected entities to vacate the area within six
months from the effectivity of the ordinance:

SEC. 3. Owners or operators of industries and other businesses, the operation of which are
no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from
the date of effectivity of this Ordinance within which to cease and desist from the operation of
businesses which are hereby in consequence, disallowed.
Ordinance No. 8119 also designated the Pandacan oil depot area as a "Planned Unit
Development/Overlay Zone (O-PUD)":

SEC. 23. Use Regulations in Planned Unit Development/Overlay Zone (O-PUD). – O-PUD
Zones are identified specific sites in the City of Manila wherein the project site is
comprehensively planned as an entity via unitary site plan which permits flexibility in
planning/ design, building siting, complementarily of building types and land uses, usable
open spaces and the preservation of significant natural land features, pursuant to regulations
specified for each particular PUD. Enumerated below are identified PUD:

xxx       xxx       xxx

6. Pandacan Oil Depot Area

xxx       xxx       xxx

Enumerated below are the allowable uses:

1. all uses allowed in all zones where it is located

2. the [Land Use Intensity Control (LUIC)] under which zones are located shall, in all
instances be complied with

3. the validity of the prescribed LUIC shall only be [superseded] by the development controls
and regulations specified for each PUD as provided for each PUD as provided for by the
masterplan of respective PUDs.88 (Emphasis supplied)

Respondent claims that in passing Ordinance No. 8119, the Sanggunian did not intend to repeal
Ordinance No. 8027 but meant instead to carry over 8027’s provisions to 8119 for the purpose of
making Ordinance No. 8027 applicable to the oil companies even after the passage of Ordinance
No. 8119.89 He quotes an excerpt from the minutes of the July 27, 2004 session of
the Sanggunian during the first reading of Ordinance No. 8119:

Member GARCIA: Your Honor, iyong patungkol po roon sa oil depot doon sa amin sa Sixth
District sa Pandacan, wala pong nakalagay eith sa ordinansa rito na taliwas o kakaiba roon
sa ordinansang ipinasa noong nakaraang Konseho, iyong Ordinance No. 8027. So kung ano
po ang nandirito sa ordinansa na ipinasa ninyo last time, iyon lang po ang ni-lift eithe at
inilagay eith. At eith eith ordinansang …iyong naipasa ng huling Konseho, niri-classify [ninyo]
from Industrial II to Commercial C-1 ang area ng Pandacan kung nasaan ang oil depot. So
ini-lift lang po [eithe] iyong definition, density, at saka po yon pong … ng… noong ordinansa
ninyo na siya eith naming inilagay eith, iniba lang po naming iyong title. So wala po kaming
binago na taliwas o nailagay na taliwas doon sa ordinansang ipinasa ninyo, ni-lift lang
po [eithe] from Ordinance No. 8027."90 (Emphasis supplied)

We agree with respondent.

Repeal by implication proceeds on the premise that where a statute of later date clearly reveals the
intention of the legislature to abrogate a prior act on the subject, that intention must be given effect. 91

There are two kinds of implied repeal. The first is: where the provisions in the two acts on the same
subject matter are irreconcilably contradictory, the latter act, to the extent of the conflict, constitutes
an implied repeal of the earlier one. 92 The second is: if the later act covers the whole subject of the
earlier one and is clearly intended as a substitute, it will operate to repeal the earlier law. 93 The oil
companies argue that the situation here falls under the first category.

Implied repeals are not favored and will not be so declared unless the intent of the legislators is
manifest.94 As statutes and ordinances are presumed to be passed only after careful deliberation and
with knowledge of all existing ones on the subject, it follows that, in passing a law, the legislature did
not intend to interfere with or abrogate a former law relating to the same subject matter. 95 If the intent
to repeal is not clear, the later act should be construed as a continuation of, and not a substitute for,
the earlier act.96

These standards are deeply enshrined in our jurisprudence. We disagree that, in enacting Ordinance
No. 8119, there was any indication of the legislative purpose to repeal Ordinance No. 8027. 97 The
excerpt quoted above is proof that there was never such an intent. While it is true that both
ordinances relate to the same subject matter, i.e. classification of the land use of the area where
Pandacan oil depot is located, if there is no intent to repeal the earlier enactment, every effort at
reasonable construction must be made to reconcile the ordinances so that both can be given effect:

The fact that a later enactment may relate to the same subject matter as that of an earlier
statute is not of itself sufficient to cause an implied repeal of the prior act, since the new
statute may merely be cumulative or a continuation of the old one. What is necessary is a
manifest indication of legislative purpose to repeal. 98

For the first kind of implied repeal, there must be an irreconcilable conflict between the two
ordinances. There is no conflict between the two ordinances. Ordinance No. 8027 reclassified the
Pandacan area from Industrial II to Commercial I. Ordinance No. 8119, in Section 23, designated it
as a "Planned Unit Development/Overlay Zone (O-PUD)." In its Annex C which defined the zone
boundaries,99 the Pandacan area was shown to be within the "High Density Residential/Mixed Use
Zone (R-3/MXD)." These zone classifications in Ordinance No. 8119 are not inconsistent with the
reclassification of the Pandacan area from Industrial to Commercial in Ordinance No. 8027. The "O-
PUD" classification merely made Pandacan a "project site ... comprehensively planned as an entity
via unitary site plan which permits flexibility in planning/design, building siting, complementarity of
building types and land uses, usable open spaces and the preservation of significant natural land
features...."100 Its classification as "R-3/MXD" means that it should "be used primarily for high-rise
housing/dwelling purposes and limited complementary/supplementary trade, services and business
activities."101 There is no conflict since both ordinances actually have a common objective, i.e., to
shift the zoning classification from industrial to commercial (Ordinance No. 8027) or mixed
residential/commercial (Ordinance No. 8119).

Moreover, it is a well-settled rule in statutory construction that a subsequent general law does not
repeal a prior special law on the same subject unless it clearly appears that the legislature has
intended by the latter general act to modify or repeal the earlier special law. Generalia specialibus
non derogant (a general law does not nullify a specific or special law). 102 This is so even if the
provisions of the general law are sufficiently comprehensive to include what was set forth in the
special act.103 The special act and the general law must stand together, one as the law of the
particular subject and the other as the law of general application. 104 The special law must be taken as
intended to constitute an exception to, or a qualification of, the general act or provision. 105

The reason for this is that the legislature, in passing a law of special character, considers
and makes special provisions for the particular circumstances dealt with by the special law.
This being so, the legislature, by adopting a general law containing provisions repugnant to
those of the special law and without making any mention of its intention to amend or modify
 such special law, cannot be deemed to have intended an amendment, repeal or modification
of the latter.106

Ordinance No. 8027 is a special law 107 since it deals specifically with a certain area described therein
(the Pandacan oil depot area) whereas Ordinance No. 8119 can be considered a general law 108 as it
covers the entire city of Manila.

The oil companies assert that even if Ordinance No. 8027 is a special law, the existence of an all-
encompassing repealing clause in Ordinance No. 8119 evinces an intent on the part of
the Sanggunian to repeal the earlier ordinance:

Sec. 84. Repealing Clause. – All ordinances, rules, regulations in conflict with the provisions
of this Ordinance are hereby repealed; PROVIDED, That the rights that are vested upon the
effectivity of this Ordinance shall not be impaired.

They cited Hospicio de San Jose de Barili, Cebu City v. Department of Agrarian Reform:109

The presence of such general repealing clause in a later statute clearly indicates the
legislative intent to repeal all prior inconsistent laws on the subject matter, whether the prior
law is a general law or a special law... Without such a clause, a later general law will
ordinarily not repeal a prior special law on the same subject. But with such clause contained
in the subsequent general law, the prior special law will be deemed repealed, as the clause
is a clear legislative intent to bring about that result. 110

This ruling in not applicable here. The repealing clause of Ordinance No. 8119 cannot be taken to
indicate the legislative intent to repeal all prior inconsistent laws on the subject matter, including
Ordinance No. 8027, a special enactment, since the aforequoted minutes (an official record of the
discussions in the Sanggunian) actually indicated the clear intent to preserve the provisions of
Ordinance No. 8027.

To summarize, the conflict between the two ordinances is more apparent than real. The two
ordinances can be reconciled. Ordinance No. 8027 is applicable to the area particularly described
therein whereas Ordinance No. 8119 is applicable to the entire City of Manila.

Mandamus Lies To Compel Respondent Mayor To Enforce Ordinance No. 8027

The oil companies insist that mandamus does not lie against respondent in consideration of the
separation of powers of the executive and judiciary. 111 This argument is misplaced. Indeed,

[the] Courts will not interfere by mandamus proceedings with the legislative [or executive
departments] of the government in the legitimate exercise of its powers, except to enforce
mere ministerial acts required by law to be performed by some officer
thereof.112 (Emphasis Supplied)

since this is the function of a writ of mandamus, which is the power to compel "the performance of
an act which the law specifically enjoins as a duty resulting from office, trust or station." 113

They also argue that petitioners had a plain, speedy and adequate remedy to compel respondent to
enforce Ordinance No. 8027 which was to seek relief from the President of the Philippines through
the Secretary of the Department of Interior and Local Government (DILG) by virtue of the President’s
power of supervision over local government units. Again, we disagree. A party need not go first to
the DILG in order to compel the enforcement of an ordinance. This suggested process would be
unreasonably long, tedious and consequently injurious to the interests of the local government unit
(LGU) and its constituents whose welfare is sought to be protected. Besides, petitioners’ resort to an
original action for mandamus before this Court is undeniably allowed by the Constitution. 114

Ordinance No. 8027 Is Constitutional And Valid

Having ruled that there is no impediment to the enforcement of Ordinance No. 8027, we now
proceed to make a definitive ruling on its constitutionality and validity.

The tests of a valid ordinance are well established. For an ordinance to be valid, it must not only be
within the corporate powers of the LGU to enact and be passed according to the procedure
prescribed by law, it must also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be
partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and
consistent with public policy and (6) must not be unreasonable. 115

The City of Manila Has The Power To Enact Ordinance No. 8027

Ordinance No. 8027 was passed by the Sangguniang Panlungsod of Manila in the exercise of its
police power. Police power is the plenary power vested in the legislature to make statutes and
ordinances to promote the health, morals, peace, education, good order or safety and general
welfare of the people. 116 This power flows from the recognition that salus populi est suprema lex (the
welfare of the people is the supreme law). 117 While police power rests primarily with the national
legislature, such power may be delegated. 118 Section 16 of the LGC, known as the general welfare
clause, encapsulates the delegated police power to local governments: 119

Section 16. General Welfare. ― Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their inhabitants.

LGUs like the City of Manila exercise police power through their respective legislative bodies, in this
case, the Sangguniang Panlungsod or the city council. Specifically, the Sanggunian can enact
ordinances for the general welfare of the city:

Section. 458. – Powers, Duties, Functions and Compensation. – (a) The sangguniang

panglungsod, as the legislative branch of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code xxxx

This police power was also provided for in RA 409 or the Revised Charter of the City of Manila:

Section 18. Legislative powers. — The [City Council] shall have the following legislative
powers:
 xxx       xxx       xxx

(g) To enact all ordinances it may deem necessary and proper for the sanitation and safety,
the furtherance of the prosperity, and the promotion of the morality, peace, good order,
comfort, convenience, and general welfare of the city and its inhabitants, and such others as
may be necessary to carry into effect and discharge the powers and duties conferred by this
chapter xxxx120

Specifically, the Sanggunian has the power to "reclassify land within the jurisdiction of the city." 121

The Enactment Of Ordinance No. 8027 Is A Legitimate Exercise Of Police Power

As with the State, local governments may be considered as having properly exercised their police
power only if the following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require its exercise and (2) the means employed are
reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence of a lawful subject and a lawful method. 122

Ordinance No. 8027 was enacted "for the purpose of promoting sound urban planning, ensuring
health, public safety and general welfare" 123 of the residents of Manila. The Sanggunian was impelled
to take measures to protect the residents of Manila from catastrophic devastation in case of a
terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian reclassified the
area defined in the ordinance from industrial to commercial.

The following facts were found by the Committee on Housing, Resettlement and Urban Development
of the City of Manila which recommended the approval of the ordinance:

(1) the depot facilities contained 313.5 million liters of highly flammable and highly volatile products
which include petroleum gas, liquefied petroleum gas, aviation fuel, diesel, gasoline, kerosene and
fuel oil among others;

(2) the depot is open to attack through land, water or air;

(3) it is situated in a densely populated place and near Malacañang Palace and

(4) in case of an explosion or conflagration in the depot, the fire could spread to the neighboring
communities.124

The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants
of Manila and not just of a particular class. 125 The depot is perceived, rightly or wrongly, as a
representation of western interests which means that it is a terrorist target. As long as it there is such
a target in their midst, the residents of Manila are not safe. It therefore became necessary to remove
these terminals to dissipate the threat. According to respondent:

Such a public need became apparent after the 9/11 incident which showed that what was
perceived to be impossible to happen, to the most powerful country in the world at that, is
actually possible. The destruction of property and the loss of thousands of lives on that
fateful day became the impetus for a public need. In the aftermath of the 9/11 tragedy, the
threats of terrorism continued [such] that it became imperative for governments to take
measures to combat their effects.126
Wide discretion is vested on the legislative authority to determine not only what the interests of the
public require but also what measures are necessary for the protection of such interests. 127 Clearly,
the Sanggunian was in the best position to determine the needs of its constituents.

In the exercise of police power, property rights of individuals may be subjected to restraints and
burdens in order to fulfill the objectives of the government. 128 Otherwise stated, the government may
enact legislation that may interfere with personal liberty, property, lawful businesses and occupations
to promote the general welfare.129 However, the interference must be reasonable and not arbitrary.
And to forestall arbitrariness, the methods or means used to protect public health, morals, safety or
welfare must have a reasonable relation to the end in view.130

The means adopted by the Sanggunian was the enactment of a zoning ordinance which reclassified
the area where the depot is situated from industrial to commercial. A zoning ordinance is defined as
a local city or municipal legislation which logically arranges, prescribes, defines and apportions a
given political subdivision into specific land uses as present and future projection of needs. 131 As a
result of the zoning, the continued operation of the businesses of the oil companies in their present
location will no longer be permitted. The power to establish zones for industrial, commercial and
residential uses is derived from the police power itself and is exercised for the protection and benefit
of the residents of a locality. 132 Consequently, the enactment of Ordinance No. 8027 is within the
power of the Sangguniang Panlungsod of the City of Manila and any resulting burden on those
affected cannot be said to be unjust:

There can be no doubt that the City of Manila has the power to divide its territory into
residential and industrial zones, and to prescribe that offensive and unwholesome trades and
occupations are to be established exclusively in the latter zone.

"The benefits to be derived by cities adopting such regulations (zoning) may be summarized
as follows: They attract a desirable and assure a permanent citizenship; they foster pride in
and attachment to the city; they promote happiness and contentment; they stabilize the use
and value of property and promote the peace, [tranquility], and good order of the city. We do
not hesitate to say that the attainment of these objects affords a legitimate field for the
exercise of the police power. He who owns property in such a district is not deprived of its
use by such regulations. He may use it for the purposes to which the section in which it is
located is dedicated. That he shall not be permitted to use it to the desecration of the
community constitutes no unreasonable or permanent hardship and results in no unjust
burden."

xxx       xxx       xxx

"The 14th Amendment protects the citizen in his right to engage in any lawful business, but it
does not prevent legislation intended to regulate useful occupations which, because of their
nature or location, may prove injurious or offensive to the public." 133

We entertain no doubt that Ordinance No. 8027 is a valid police power measure because there is a
concurrence of lawful subject and lawful method.

Ordinance No. 8027 Is Not Unfair, Oppressive Or Confiscatory Which Amounts To Taking
Without Compensation

According to the oil companies, Ordinance No. 8027 is unfair and oppressive as it does not only
regulate but also absolutely prohibits them from conducting operations in the City of Manila.
Respondent counters that this is not accurate since the ordinance merely prohibits the oil companies
from operating their businesses in the Pandacan area.

Indeed, the ordinance expressly delineated in its title and in Section 1 what it pertained to.
Therefore, the oil companies’ contention is not supported by the text of the ordinance. Respondent
succinctly stated that:

The oil companies are not forbidden to do business in the City of Manila. They may still very
well do so, except that their oil storage facilities are no longer allowed in the Pandacan area.
Certainly, there are other places in the City of Manila where they can conduct this specific
kind of business. Ordinance No. 8027 did not render the oil companies illegal. The assailed
ordinance affects the oil companies business only in so far as the Pandacan area is
concerned.134

The oil companies are not prohibited from doing business in other appropriate zones in Manila. The
City of Manila merely exercised its power to regulate the businesses and industries in the zones it
established:

As to the contention that the power to regulate does not include the power to prohibit, it will
be seen that the ordinance copied above does not prohibit the installation of motor engines
within the municipality of Cabanatuan but only within the zone therein fixed. If the municipal
council of Cabanatuan is authorized to establish said zone, it is also authorized to provide
what kind of engines may be installed therein. In banning the installation in said zone of all
engines not excepted in the ordinance, the municipal council of Cabanatuan did no more
than regulate their installation by means of zonification. 135

The oil companies aver that the ordinance is unfair and oppressive because they have invested
billions of pesos in the depot. 136 Its forced closure will result in huge losses in income and
tremendous costs in constructing new facilities.

Their contention has no merit. In the exercise of police power, there is a limitation on or restriction of
property interests to promote public welfare which involves no compensable taking. Compensation is
necessary only when the state’s power of eminent domain is exercised. In eminent domain, property
is appropriated and applied to some public purpose. Property condemned under the exercise of
police power, on the other hand, is noxious or intended for a noxious or forbidden purpose and,
consequently, is not compensable.137 The restriction imposed to protect lives, public health and
safety from danger is not a taking. It is merely the prohibition or abatement of a noxious use which
interferes with paramount rights of the public.

Property has not only an individual function, insofar as it has to provide for the needs of the owner,
but also a social function insofar as it has to provide for the needs of the other members of
society.138 The principle is this:

Police power proceeds from the principle that every holder of property, however absolute
and unqualified may be his title, holds it under the implied liability that his use of it shall not
be injurious to the equal enjoyment of others having an equal right to the enjoyment of their
property, nor injurious to the right of the community. Rights of property, like all other social
and conventional rights, are subject to reasonable limitations in their enjoyment as shall
prevent them from being injurious, and to such reasonable restraints and regulations
established by law as the legislature, under the governing and controlling power vested in
them by the constitution, may think necessary and expedient. 139
In the regulation of the use of the property, nobody else acquires the use or interest therein, hence
there is no compensable taking.140 In this case, the properties of the oil companies and other
businesses situated in the affected area remain theirs. Only their use is restricted although they can
be applied to other profitable uses permitted in the commercial zone.

Ordinance No. 8027 Is Not Partial And Discriminatory

The oil companies take the position that the ordinance has discriminated against and singled out the
Pandacan Terminals despite the fact that the Pandacan area is congested with buildings and
residences that do not comply with the National Building Code, Fire Code and Health and Sanitation
Code.141

This issue should not detain us for long. An ordinance based on reasonable classification does not
violate the constitutional guaranty of the equal protection of the law. 142 The requirements for a valid
and reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane
to the purpose of the law; (3) it must not be limited to existing conditions only and (4) it must apply
equally to all members of the same class.143

The law may treat and regulate one class differently from another class provided there are real and
substantial differences to distinguish one class from another. 144 Here, there is a reasonable
classification. We reiterate that what the ordinance seeks to prevent is a catastrophic devastation
that will result from a terrorist attack. Unlike the depot, the surrounding community is not a high-
value terrorist target. Any damage caused by fire or explosion occurring in those areas would be
nothing compared to the damage caused by a fire or explosion in the depot itself. Accordingly, there
is a substantial distinction. The enactment of the ordinance which provides for the cessation of the
operations of these terminals removes the threat they pose. Therefore it is germane to the purpose
of the ordinance. The classification is not limited to the conditions existing when the ordinance was
enacted but to future conditions as well. Finally, the ordinance is applicable to all businesses and
industries in the area it delineated.

Ordinance No. 8027 is Not Inconsistent With RA 7638 And RA 8479

The oil companies and the DOE assert that Ordinance No. 8027 is unconstitutional because it
contravenes RA 7638 (DOE Act of 1992) 145 and RA 8479 (Downstream Oil Industry Deregulation
Law of 1998).146 They argue that through RA 7638, the national legislature declared it a policy of the
state "to ensure a continuous, adequate, and economic supply of energy" 147 and created the DOE to
implement this policy. Thus, under Section 5 I, DOE is empowered to "establish and administer
programs for the exploration, transportation, marketing, distribution, utilization, conservation,
stockpiling, and storage of energy resources." Considering that the petroleum products contained in
the Pandacan Terminals are major and critical energy resources, they conclude that their
administration, storage, distribution and transport are of national interest and fall under DOE’s
primary and exclusive jurisdiction.148

They further assert that the terminals are necessary for the delivery of immediate and adequate
supply of oil to its recipients in the most economical way. 149 Local legislation such as Ordinance No.
8027 (which effectively calls for the removal of these terminals) allegedly frustrates the state policy
of ensuring a continuous, adequate, and economic supply of energy expressed in RA 7638, a
national law.150 Likewise, the ordinance thwarts the determination of the DOE that the terminals’
operations should be merely scaled down and not discontinued. 151 They insist that this should not be
allowed considering that it has a nationwide economic impact and affects public interest
transcending the territorial jurisdiction of the City of Manila. 152
According to them, the DOE’s supervision over the oil industry under RA 7638 was subsequently
underscored by RA 8479, particularly in Section 7 thereof:

SECTION 7. Promotion of Fair Trade Practices. ― The Department of Trade and Industry
(DTI) and DOE shall take all measures to promote fair trade and prevent cartelization,
monopolies, combinations in restraint of trade, and any unfair competition in the Industry as
defined in Article 186 of the Revised Penal Code, and Articles 168 and 169 of Republic Act
No. 8293, otherwise known as the "Intellectual Property Rights Law". The DOE
shall continue to encourage certain practices in the Industry which serve the public
interest and are intended to achieve efficiency and cost reduction, ensure continuous
supply of petroleum products, and enhance environmental protection. These practices
may include borrow-and-loan agreements, rationalized depot and manufacturing operations,
hospitality agreements, joint tanker and pipeline utilization, and joint actions on oil spill
control and fire prevention. (Emphasis supplied)

Respondent counters that DOE’s regulatory power does not preclude LGUs from exercising their
police power.153

Indeed, ordinances should not contravene existing statutes enacted by Congress. The rationale for
this was clearly explained in Magtajas vs. Pryce Properties Corp., Inc.:154

The rationale of the requirement that the ordinances should not contravene a statute is
obvious. Municipal governments are only agents of the national government. Local councils
exercise only delegated legislative powers conferred on them by Congress as the national
lawmaking body. The delegate cannot be superior to the principal or exercise powers higher
than those of the latter. It is a heresy to suggest that the local government units can undo the
acts of Congress, from which they have derived their power in the first place, and negate by
mere ordinance the mandate of the statute.

"Municipal corporations owe their origin to, and derive their powers and rights wholly from
the legislature. It breathes into them the breath of life, without which they cannot exist. As it
creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is
some constitutional limitation on the right, the legislature might, by a single act, and if we can
suppose it capable of so great a folly and so great a wrong, sweep from existence all of the
municipal corporations in the State, and the corporation could not prevent it. We know of no
limitation on the right so far as to the corporation themselves are concerned. They are, so to
phrase it, the mere tenants at will of the legislature."

This basic relationship between the national legislature and the local government units has
not been enfeebled by the new provisions in the Constitution strengthening the policy of local
autonomy. Without meaning to detract from that policy, we here confirm that Congress
retains control of the local government units although in significantly reduced degree now
than under our previous Constitutions. The power to create still includes the power to
destroy. The power to grant still includes the power to withhold or recall. True, there are
certain notable innovations in the Constitution, like the direct conferment on the local
government units of the power to tax, which cannot now be withdrawn by mere statute. By
and large, however, the national legislature is still the principal of the local government units,
which cannot defy its will or modify or violate it.155

The question now is whether Ordinance No. 8027 contravenes RA 7638 and RA 8479. It does not.
Under Section 5 I of RA 7638, DOE was given the power to "establish and administer programs for
the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and
storage of energy resources." On the other hand, under Section 7 of RA 8749, the DOE "shall
continue to encourage certain practices in the Industry which serve the public interest and are
intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum products."
Nothing in these statutes prohibits the City of Manila from enacting ordinances in the exercise of its
police power.

The principle of local autonomy is enshrined in and zealously protected under the Constitution. In
Article II, Section 25 thereof, the people expressly adopted the following policy:

Section 25. The State shall ensure the autonomy of local governments.

An entire article (Article X) of the Constitution has been devoted to guaranteeing and promoting the
autonomy of LGUs. The LGC was specially promulgated by Congress to ensure the autonomy of
local governments as mandated by the Constitution:

Sec. 2. Declaration of Policy. ― (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful
local autonomy to enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the attainment of national
goals. Toward this end, the State shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National Government to the local
government units. (Emphasis supplied)

We do not see how the laws relied upon by the oil companies and DOE stripped the City of Manila of
its power to enact ordinances in the exercise of its police power and to reclassify the land uses
within its jurisdiction. To guide us, we shall make a brief survey of our decisions where the police
power measure of the LGU clashed with national laws.

In Tan v. Pereña,156 the Court ruled that Ordinance No. 7 enacted by the municipality of
Daanbantayan, Cebu allowing the operation of three cockpits was invalid for violating PD 449 (or the
Cockfighting Law of 1974) which permitted only one cockpit per municipality.

In Batangas CATV, Inc. v. Court of Appeals,157 the Sangguniang Panlungsod of Batangas City

enacted Resolution No. 210 granting Batangas CATV, Inc. a permit to operate a cable television
(CATV) system in Batangas City. The Court held that the LGU did not have the authority to grant
franchises to operate a CATV system because it was the National Telecommunications Commission
(NTC) that had the power under EO Nos. 205 and 436 to regulate CATV operations. EO 205
mandated the NTC to grant certificates of authority to CATV operators while EO 436 vested on the
NTC the power to regulate and supervise the CATV industry.

In Lina, Jr. v. Paño,158 we held that Kapasiyahan Bilang 508, Taon 1995 of the Sangguniang
Panlalawigan of Laguna could not be used as justification to prohibit lotto in the municipality of San
Pedro, Laguna because lotto was duly authorized by RA 1169, as amended by BP 42. This law
granted a franchise to the Philippine Charity Sweepstakes Office and allowed it to operate lotteries.

In Magtajas v. Pryce Properties Corp., Inc.,159 the Sangguniang Panlungsod of Cagayan de Oro City

passed Ordinance Nos. 3353 and 3375-93 prohibiting the operation of casinos in the city. We ruled
that these ordinances were void for contravening PD 1869 or the charter of the Philippine
Amusements and Gaming Corporation which had the power to operate casinos.

The common dominator of all of these cases is that the national laws were clearly and expressly in
conflict with the ordinances/resolutions of the LGUs. The inconsistencies were so patent that there
was no room for doubt. This is not the case here.

The laws cited merely gave DOE general powers to "establish and administer programs for the
exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage
of energy resources" and "to encourage certain practices in the [oil] industry which serve the public
interest and are intended to achieve efficiency and cost reduction, ensure continuous supply of
petroleum products." These powers can be exercised without emasculating the LGUs of the powers
granted them. When these ambiguous powers are pitted against the unequivocal power of the LGU
to enact police power and zoning ordinances for the general welfare of its constituents, it is not
difficult to rule in favor of the latter. Considering that the powers of the DOE regarding the Pandacan
Terminals are not categorical, the doubt must be resolved in favor of the City of Manila:

SECTION 5. Rules of Interpretation. ― In the interpretation of the provisions of this Code,

the following rules shall apply:

(a) Any provision on a power of a local government unit shall be liberally interpreted in its
favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit. Any fair and reasonable doubt as to the
existence of the power shall be interpreted in favor of the local government unit concerned;

xxx       xxx       xxx

(g) IThe general welfare provisions in this Code shall be liberally interpreted to give more
powers to local government units in accelerating economic development and upgrading the
quality of life for the people in the community xxxx

The least we can do to ensure genuine and meaningful local autonomy is not to force an
interpretation that negates powers explicitly granted to local governments. To rule against
the power of LGUs to reclassify areas within their jurisdiction will subvert the principle of local
autonomy guaranteed by the Constitution. 160 As we have noted in earlier decisions, our
national officials should not only comply with the constitutional provisions on local autonomy
but should also appreciate the spirit and liberty upon which these provisions are based. 161

The DOE Cannot Exercise The Power Of Control Over LGUs

Another reason that militates against the DOE’s assertions is that Section 4 of Article X of the
Constitution confines the President’s power over LGUs to one of general supervision:

SECTION 4. The President of the Philippines shall exercise general supervision over local
governments. Xxxx

Consequently, the Chief Executive or his or her alter egos, cannot exercise the power of control over
them.162 Control and supervision are distinguished as follows:

[Supervision] means overseeing or the power or authority of an officer to see that

subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former
 may take such action or step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter or modify or nullify or set
aside what a subordinate officer ha[s] done in the performance of his duties and to substitute
the judgment of the former for that of the latter. 163

Supervisory power, when contrasted with control, is the power of mere oversight over an inferior
body; it does not include any restraining authority over such body. 164 It does not allow the supervisor
to annul the acts of the subordinate.165 Here, what the DOE seeks to do is to set aside an ordinance
enacted by local officials, a power that not even its principal, the President, has. This is because:

Under our present system of government, executive power is vested in the President. The
members of the Cabinet and other executive officials are merely alter egos. As such, they
are subject to the power of control of the President, at whose will and behest they can be
removed from office; or their actions and decisions changed, suspended or reversed. In
contrast, the heads of political subdivisions are elected by the people. Their sovereign
powers emanate from the electorate, to whom they are directly accountable. By
constitutional fiat, they are subject to the President’s supervision only, not control, so long as
their acts are exercised within the sphere of their legitimate powers. By the same token, the
President may not withhold or alter any authority or power given them by the Constitution
and the law.166

Thus, the President and his or her alter egos, the department heads, cannot interfere with the
activities of local governments, so long as they act within the scope of their authority. Accordingly,
the DOE cannot substitute its own discretion for the discretion exercised by the sanggunian of the
City of Manila. In local affairs, the wisdom of local officials must prevail as long as they are acting
within the parameters of the Constitution and the law. 167

Ordinance No. 8027 Is Not Invalid For Failure To Comply With RA 7924 And EO 72

The oil companies argue that zoning ordinances of LGUs are required to be submitted to the
Metropolitan Manila Development Authority (MMDA) for review and if found to be in compliance with
its metropolitan physical framework plan and regulations, it shall endorse the same to the Housing
and Land Use Regulatory Board (HLURB). Their basis is Section 3 (e) of RA 7924: 168

SECTION 3. Scope of MMDA Services. ― Metro-wide services under the jurisdiction of

the MMDA are those services which have metro-wide impact and transcend local political
boundaries or entail huge expenditures such that it would not be viable for said services to
be provided by the individual [LGUs] comprising Metropolitan Manila. These services shall
include:

xxx       xxx       xxx

(g) Urban renewal, zoning, and land use planning, and shelter services which include the
formulation, adoption and implementation of policies, standards, rules and regulations,
programs and projects to rationalize and optimize urban land use and provide direction to
urban growth and expansion, the rehabilitation and development of slum and blighted areas,
the development of shelter and housing facilities and the provision of necessary social
services thereof. (Emphasis supplied)

Reference was also made to Section 15 of its implementing rules:

 Section 15. Linkages with HUDCC, HLURB, NHA, LGUs and Other National Government
Agencies Concerned on Urban Renewal, Zoning and Land Use Planning and Shelter
Services. Within the context of the National Housing and Urban Development Framework,
and pursuant to the national standards, guidelines and regulations formulated by the
Housing and Land Use Regulatory Board [HLURB] on land use planning and zoning, the
[MMDA] shall prepare a metropolitan physical framework plan and regulations which shall
complement and translate the socio-economic development plan for Metro Manila into
physical or spatial terms, and provide the basis for the preparation, review, integration and
implementation of local land use plans and zoning, ordinance of cities and municipalities in
the area.

Said framework plan and regulations shall contain, among others, planning and zoning
policies and procedures that shall be observed by local government units in the preparation
of their own plans and ordinances pursuant to Section 447 and 458 of RA 7160, as well as
the identification of sites and projects that are considered to be of national or metropolitan
significance.

Cities and municipalities shall prepare their respective land use plans and zoning
ordinances and submit the same for review and integration by the [MMDA] and
indorsement to HLURB in accordance with Executive Order No. 72 and other pertinent
laws.

In the preparation of a Metropolitan Manila physical framework plan and regulations, the
[MMDA] shall coordinate with the Housing and Urban Development Coordinating Council,
HLURB, the National Housing Authority, Intramuros Administration, and all other agencies of
the national government which are concerned with land use and zoning, urban renewal and
shelter services. (Emphasis supplied)

They also claim that EO 72169 provides that zoning ordinances of cities and municipalities of Metro
Manila are subject to review by the HLURB to ensure compliance with national standards and
guidelines. They cite Section 1, paragraphs I, (e), (f) and (g):

SECTION 1. Plan formulation or updating. ―

xxx       xxx       xxx

(g) Cities and municipalities of Metropolitan Manila shall continue to formulate or

update their respective comprehensive land use plans, in accordance with the land
use planning and zoning standards and guidelines prescribed by the HLURB
pursuant to EO 392, S. of 1990, and other pertinent national policies.

xxx       xxx       xxx

(e) Pursuant to LOI 729, S. of 1978, EO 648, S. of 1981, and RA 7279, the comprehensive
land use plans of provinces, highly urbanized cities and independent component cities shall
be reviewed and ratified by the HLURB to ensure compliance with national standards and
guidelines.

(f) Pursuant to EO 392, S. of 1999, the comprehensive land use plans of cities and
municipalities of Metropolitan Manila shall be reviewed by the HLURB to ensure compliance
with national standards and guidelines.
 (g) Said review shall be completed within three (3) months upon receipt thereof otherwise,
the same shall be deemed consistent with law, and, therefore, valid. (Emphasis supplied)

They argue that because Ordinance No. 8027 did not go through this review process, it is invalid.

The argument is flawed.

RA 7942 does not give MMDA the authority to review land use plans and zoning ordinances of cities
and municipalities. This was only found in its implementing rules which made a reference to EO 72.
EO 72 expressly refers to comprehensive land use plans (CLUPs) only. Ordinance No. 8027 is
admittedly not a CLUP nor intended to be one. Instead, it is a very specific ordinance which
reclassified the land use of a defined area in order to prevent the massive effects of a possible
terrorist attack. It is Ordinance No. 8119 which was explicitly formulated as the "Manila [CLUP] and
Zoning Ordinance of 2006." CLUPs are the ordinances which should be submitted to the MMDA for
integration in its metropolitan physical framework plan and approved by the HLURB to ensure that
they conform with national guidelines and policies.

Moreover, even assuming that the MMDA review and HLURB ratification are necessary, the oil
companies did not present any evidence to show that these were not complied with. In accordance
with the presumption of validity in favor of an ordinance, its constitutionality or legality should be
upheld in the absence of proof showing that the procedure prescribed by law was not observed. The
burden of proof is on the oil companies which already had notice that this Court was inclined to
dispose of all the issues in this case. Yet aside from their bare assertion, they did not present any
certification from the MMDA or the HLURB nor did they append these to their pleadings. Clearly,
they failed to rebut the presumption of validity of Ordinance No. 8027. 170

Conclusion

Essentially, the oil companies are fighting for their right to property. They allege that they stand to
lose billions of pesos if forced to relocate. However, based on the hierarchy of constitutionally
protected rights, the right to life enjoys precedence over the right to property. 171 The reason is
obvious: life is irreplaceable, property is not. When the state or LGU’s exercise of police power
clashes with a few individuals’ right to property, the former should prevail. 172

Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027. Without
a doubt, there are no impediments to its enforcement and implementation. Any delay is unfair to the
inhabitants of the City of Manila and its leaders who have categorically expressed their desire for the
relocation of the terminals. Their power to chart and control their own destiny and preserve their lives
and safety should not be curtailed by the intervenors’ warnings of doomsday scenarios and threats
of economic disorder if the ordinance is enforced.

Secondary to the legal reasons supporting the immediate implementation of Ordinance No. 8027 are
the policy considerations which drove Manila’s government to come up with such a measure:

... [The] oil companies still were not able to allay the apprehensions of the city regarding the
security threat in the area in general. No specific action plan or security measures were
presented that would prevent a possible large-scale terrorist or malicious attack especially an
attack aimed at Malacañang. The measures that were installed were more directed towards
their internal security and did not include the prevention of an external attack even on a
bilateral level of cooperation between these companies and the police and military.
 xxx       xxx       xxx

It is not enough for the city government to be told by these oil companies that they have the
most sophisticated fire-fighting equipments and have invested millions of pesos for these
equipments. The city government wants to be assured that its residents are safe at any time
from these installations, and in the three public hearings and in their position papers, not one
statement has been said that indeed the absolute safety of the residents from the hazards
posed by these installations is assured. 173

We are also putting an end to the oil companies’ determination to prolong their stay in Pandacan
despite the objections of Manila’s residents. As early as October 2001, the oil companies signed a
MOA with the DOE obliging themselves to:

... undertake a comprehensive and comparative study ... [which] shall include the preparation
of a Master Plan, whose aim is to determine the scope and timing of the feasible location of
the Pandacan oil terminals and all associated facilities and infrastructure including
government support essential for the relocation such as the necessary transportation
infrastructure, land and right of way acquisition, resettlement of displaced residents and
environmental and social acceptability which shall be based on mutual benefit of the Parties
and the public.174

Now that they are being compelled to discontinue their operations in the Pandacan Terminals, they
cannot feign unreadiness considering that they had years to prepare for this eventuality.

Just the same, this Court is not about to provoke a crisis by ordering the immediate relocation of the
Pandacan Terminals out of its present site. The enforcement of a decision of this Court, specially
one with far-reaching consequences, should always be within the bounds of reason, in accordance
with a comprehensive and well-coordinated plan, and within a time-frame that complies with the
letter and spirit of our resolution. To this end, the oil companies have no choice but to obey the law.

A Warning To Petitioners’ Counsel

We draw the attention of the parties to a matter of grave concern to the legal profession.

Petitioners and their counsel, Atty. Samson Alcantara, submitted a four-page memorandum that
clearly contained either substance nor research. It is absolutely insulting to this Court.

We have always tended towards judicial leniency, temperance and compassion to those who suffer
from a wrong perception of what the majesty of the law means. But for a member of the bar, an
officer of the court, to file in this Court a memorandum of such unacceptable quality is an entirely
different matter.

It is indicative less of a personal shortcoming or contempt of this Court and more of a lawyer’s sorry
descent from a high sense of duty and responsibility. As a member of the bar and as an officer of the
court, a lawyer ought to be keenly aware that the chief safeguard of the body politic is respect for the
law and its magistrates.

There is nothing more effective than the written word by which counsel can persuade this Court of
the righteousness of his cause. For if truth were self-evident, a memorandum would be completely
unnecessary and superfluous.
The inability of counsel to prepare a memorandum worthy of this Court’s consideration is an ejemplo
malo to the legal profession as it betrays no genuine interest in the cause he claims to espouse. Or
did counsel think he can earn his moment of glory without the hard work and dedication called for by
his petition?

A Final Word

On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of gasoline and 14,000
liters of diesel exploded in the middle of the street a short distance from the exit gate of the
Pandacan Terminals, causing death, extensive damage and a frightening conflagration in the vicinity
of the incident. Need we say anthing about what will happen if it is the estimated 162 to 211 million
liters175 of petroleum products in the terminal complex which blow up?

WHEREFORE, the motions for leave to intervene of Chevron Philippines Inc., Petron Corporation
and Pilipinas Shell Petroleum Corporation, and the Republic of the Philippines, represented by the
Department of Energy, are hereby GRANTED. Their respective motions for reconsideration are
hereby DENIED. The Regional Trial Court, Manila, Branch 39 is ORDERED to DISMISS the
consolidated cases of Civil Case No. 03-106377 and Civil Case No. 03-106380.

We reiterate our order to respondent Mayor of the City of Manila to enforce Ordinance No. 8027. In
coordination with the appropriate agencies and other parties involved, respondent Mayor is hereby
ordered to oversee the relocation and transfer of the Pandacan Terminals out of its present site.

To ensure the orderly transfer, movement and relocation of assets and personnel, the intervenors
Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation shall, within
a non-extendible period of ninety (90) days, submit to the Regional Trial Court of Manila, Branch 39,
the comprehensive plan and relocation schedule which have allegedly been prepared. The presiding
judge of Manila RTC, Branch 39 will monitor the strict enforcement of this resolution.

Atty. Samson Alcantara is hereby ordered to explain within five (5) days from notice why he should
not be disciplined for his refusal, or inability, to file a memorandum worthy of the consideration of this
Court.

Treble costs against petitioners’ counsel, Atty. Samson Alcantara.

SO ORDERED.
 4. G.R. No. 182795             June 5, 2008

ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA PIA, petitioners,

vs.
NAPICO HOMEOWNERS ASS’N., I – XIII, INC., ET AL., respondents.

RESOLUTION

REYES, R.T., J.:

THE present petition filed on May 26, 2008 seeks the issuance of a Writ of Amparo upon the
following premise:

Petitioners were deprived of their liberty, freedom and/or rights to shelter enshrined and
embodied in our Constitution, as the result of these nefarious activities of both the Private
and Public Respondents. This ardent request filed before this Honorable Supreme Court is
the only solution to this problem via this newly advocated principles incorporated in the Rules
– the "RULE ON THE WRIT OF AMPARO."1

It appears that petitioners are settlers in a certain parcel of land situated in Barangay Manggahan,
Pasig City. Their dwellings/houses have either been demolished as of the time of filing of the
petition, or is about to be demolished pursuant to a court judgment.

While they attempted to focus on issuance of what they claimed to be fraudulent and spurious land
titles, to wit:

Petitioners herein are desirous to help the government, the best way they can, to unearth
these so-called "syndicates" clothed with governmental functions, in cahoots with the
"squatting syndicates" - - - - the low so defines. If only to give its proper meanings, the
Government must be the first one to cleans (sic) its ranks from these unscrupulous political
protégées. If unabated would certainly ruin and/or destroy the efficacy of the Torrens System
of land registration in this Country. It is therefore the ardent initiatives of the herein
Petitioners, by way of the said prayer for the issuance of the Writ of Amparo, that these
unprincipled Land Officials be summoned to answer their participation in the
issuances of these fraudulent and spurious titles, NOW, in the hands of the Private
Respondents. The Courts of Justice, including this Honorable Supreme Court, are
likewise being made to believe that said titles in the possession of the Private
Respondents were issued untainted with frauds.2
what the petition ultimately seeks is the reversal of this Court’s dismissal of petitions in G.R. Nos.
177448, 180768, 177701, 177038, thus:

That, Petitioners herein knew before hand that: there can be no motion for reconsideration
for the second or third time to be filed before this Honorable Supreme Court. As such
therefore, Petitioners herein are aware of the opinion that this present petition should not in
any way be treated as such motions fore reconsideration. Solely, this petition is only for the
possible issuance of the writ of amparo, although it might affect the previous rulings of this
Honorable Supreme Court in these cases, G.R. Nos. 177448, 180768, 177701 and 177038.
Inherent in the powers of the Supreme Court of the Philippines is to modify, reverse
and set aside, even its own previous decision, that can not be thwarted nor influenced
by any one, but, only on the basis of merits and evidence. This is the purpose of this
petition for the Writ of Amparo.3

We dismiss the petition.

The Rule on the Writ of Amparo provides:

Section 1. Petition. – The petition for a writ of amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.
(Emphasis supplied.)

The threatened demolition of a dwelling by virtue of a final judgment of the court, which in this case
was affirmed with finality by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not
included among the enumeration of rights as stated in the above-quoted Section 1 for which the
remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have
any despite the final and executory judgment adverse to them, does not constitute right to life, liberty
and security. There is, therefore, no legal basis for the issuance of the writ of amparo.

Besides, the factual and legal basis for petitioners’ claim to the land in question is not alleged in the
petition at all. The Court can only surmise that these rights and interest had already been threshed
out and settled in the four cases cited above. No writ of amparo may be issued unless there is a
clear allegation of the supposed factual and legal basis of the right sought to be protected.

Under Section 6 of the same rules, the court shall issue the writ upon the filing of the petition, only  if
on its face, the court ought to issue said writ.

Section 6. Issuance of the Writ. – Upon the filing of the petition, the court, justice or judge
shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of
court shall issue the writ under the seal of the court; or in case of urgent necessity, the
justice or the judge may issue the writ under his or her own hand, and may deputize any
officer or person to serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not
be later than seven (7) days from the date of its issuance.

Considering that there is no legal basis for its issuance, as in this case, the writ will not be issued
and the petition will be dismissed outright.
This new remedy of writ of amparo which is made available by this Court is intended for the
protection of the highest possible rights of any person, which is his or her right to life, liberty and
security. The Court will not spare any time or effort on its part in order to give priority to petitions of
this nature. However, the Court will also not waste its precious time and effort on matters not
covered by the writ.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

5. EN BANC

[G.R. No. 164301 : August 10, 2010]

BANK OF THE PHILIPPINE ISLANDS, PETITIONER, VS. BPI EMPLOYEES

UNION-DAVAO CHAPTER-FEDERATION OF UNIONS IN BPI UNIBANK,
RESPONDENT.

DECISION

LEONARDO-DE CASTRO, J.:

May a corporation invoke its merger with another corporation as a valid ground to
exempt its "absorbed employees" from the coverage of a union shop clause contained
in its existing Collective Bargaining Agreement (CBA) with its own certified labor union? 
That is the question we shall endeavor to answer in this petition for review filed by an
employer after the Court of Appeals decided in favor of respondent union, which is the
employees' recognized collective bargaining representative.

At the outset, we should call to mind the spirit and the letter of the Labor Code
provisions on union security clauses, specifically Article 248 (e), which states, "x x x
Nothing in this Code or in any other law shall stop the parties from requiring
membership in a recognized collective bargaining agent as a condition for employment,
except those employees who are already members of another union at the time of the
signing of the collective bargaining agreement." [1]  This case which involves the
application of a collective bargaining agreement with a union shop clause should be
resolved principally from the standpoint of the clear provisions of our labor laws, and
the express terms of the CBA in question, and not by inference from the general
consequence of the merger of corporations under the Corporation Code, which
obviously does not deal with and, therefore, is silent on the terms and conditions of
employment in corporations or juridical entities.

This issue must be resolved NOW, instead of postponing it to a future time when the
CBA is renegotiated as suggested by the Honorable Justice Arturo D. Brion because the
same issue may still be resurrected in the renegotiation if the absorbed employees
insist on their privileged status of being exempt from any union shop clause or any
variant thereof.
We find it significant to note that it is only the employer, Bank of the Philippine Islands
(BPI), that brought the case up to this Court via the instant petition for review; while
the employees actually involved in the case did not pursue the same relief, but had
instead chosen in effect to acquiesce to the decision of the Court of Appeals which
effectively required them to comply with the union shop clause under the existing CBA
at the time of the merger of BPI with Far East Bank and Trust Company (FEBTC), which
decision had already become final and executory as to the aforesaid employees.  By not
appealing the decision of the Court of Appeals, the aforesaid employees are bound by
the said Court of Appeals' decision to join BPI's duly certified labor union.  In view of
the apparent acquiescence of the affected FEBTC employees in the Court of Appeals'
decision, BPI should not have pursued this petition for review. However, even assuming
that BPI may do so, the same still cannot prosper.

What is before us now is a petition for review under Rule 45 of the Rules of Court of the
Decision[2] dated September 30, 2003 of the Court of Appeals, as reiterated in its
Resolution[3] of June 9, 2004, reversing and setting aside the Decision [4] dated
November 23, 2001 of Voluntary Arbitrator Rosalina Letrondo-Montejo, in CA-G.R. SP
No. 70445, entitled BPI Employees Union-Davao Chapter-Federation of Unions in BPI
Unibank v. Bank of the Philippine Islands, et al.

The antecedent facts are as follows:

On March 23, 2000, the Bangko Sentral ng Pilipinas approved the Articles of Merger
executed on January 20, 2000 by and between BPI, herein petitioner, and FEBTC. [5] 
This Article and Plan of Merger was approved by the Securities and Exchange
Commission on April 7, 2000.[6]

Pursuant to the Article and Plan of Merger, all the assets and liabilities of FEBTC were
transferred to and absorbed by BPI as the surviving corporation.  FEBTC employees,
including those in its different branches across the country, were hired by petitioner as
its own employees, with their status and tenure recognized and salaries and benefits
maintained.

Respondent BPI Employees Union-Davao Chapter - Federation of Unions in BPI Unibank

(hereinafter the "Union," for brevity) is the exclusive bargaining agent of BPI's rank and
file employees in Davao City. The former FEBTC rank-and-file employees in Davao City
did not belong to any labor union at the time of the merger.  Prior to the effectivity of
the merger, or on March 31, 2000, respondent Union invited said FEBTC employees to a
meeting regarding the Union Shop Clause (Article II, Section 2) of the existing CBA
between petitioner BPI and respondent Union.[7]

The parties both advert to certain provisions of the existing CBA, which are quoted
below:

ARTICLE I

Section 1. Recognition and Bargaining Unit - The BANK recognizes the UNION as the
sole and exclusive collective bargaining representative of all the regular rank and file
employees of the Bank offices in Davao City.
Section 2. Exclusions

Section 3. Additional Exclusions

Section 4.  Copy of Contract

ARTICLE II

Section 1.  Maintenance of Membership - All employees within the bargaining unit who
are members of the Union on the date of the effectivity of this Agreement as well as
employees within the bargaining unit who subsequently join or become members of the
Union during the lifetime of this Agreement shall as a condition of their continued
employment with the Bank, maintain their membership in the Union in good standing.

Section 2.  Union Shop  - New employees falling within the bargaining unit as defined
in Article I of this Agreement, who may hereafter be regularly employed by the
Bank shall, within thirty (30) days after they become regular employees, join the Union
as a condition of their continued employment.  It is understood that membership in
good standing in the Union is a condition of their continued employment with the Bank.
[8]
  (Emphases supplied.)

After the meeting called by the Union, some of the former FEBTC employees joined the
Union, while others refused.  Later, however, some of those who initially joined
retracted their membership.[9]

Respondent Union then sent notices to the former FEBTC employees who refused to
join, as well as those who retracted their membership, and called them to a hearing
regarding the matter.  When these former FEBTC employees refused to attend the
hearing, the president of the Union requested BPI to implement the Union Shop Clause
of the CBA and to terminate their employment pursuant thereto. [10]

After two months of management inaction on the request, respondent Union informed
petitioner BPI of its decision to refer the issue of the implementation of the Union Shop
Clause of the CBA to the Grievance Committee. However, the issue remained
unresolved at this level and so it was subsequently submitted for voluntary arbitration
by the parties.[11]

Voluntary Arbitrator Rosalina Letrondo-Montejo, in a Decision[12] dated November 23,

2001, ruled in favor of petitioner BPI's interpretation that the former FEBTC employees
were not covered by the Union Security Clause of the CBA between the Union and the
Bank on the ground that the said employees were not new employees who were hired
and subsequently regularized, but were absorbed employees "by operation of law"
because the "former employees of FEBTC can be considered assets and liabilities
of the absorbed corporation." The Voluntary Arbitrator concluded that the former
FEBTC employees could not be compelled to join the Union, as it was their
constitutional right to join or not to join any organization.

Respondent Union filed a Motion for Reconsideration, but the Voluntary Arbitrator
denied the same in an Order dated March 25, 2002. [13]
Dissatisfied, respondent then appealed the Voluntary Arbitrator's decision to the Court
of Appeals.  In the herein assailed Decision dated September 30, 2003, the Court of
Appeals reversed and set aside the Decision of the Voluntary Arbitrator. [14] Likewise, the
Court of Appeals denied herein petitioner's Motion for Reconsideration in a Resolution
dated June 9, 2004.

The Court of Appeals pertinently ruled in its Decision:

A union-shop clause has been defined as a form of union security provision wherein
non-members may be hired, but to retain employment must become union members
after a certain period.

There is no question as to the existence of the union-shop clause in the CBA between
the petitioner-union and the company.  The controversy lies in its application to the
"absorbed" employees.

This Court agrees with the voluntary arbitrator that the ABSORBED employees are
distinct and different from NEW employees BUT only in so far as their employment
service is concerned. The distinction ends there.  In the case at bar, the absorbed
employees' length of service from its former employer is tacked with their employment
with BPI.  Otherwise stated, the absorbed employees service is continuous and there is
no gap in their service record.

This Court is persuaded that the similarities  of "new" and "absorbed" employees far
outweighs the distinction between them.  The similarities lies on the following, to wit: 
(a) they have a new employer; (b) new working conditions; (c) new terms of
employment and; (d) new company policy to follow.  As such, they should be
considered as "new" employees for purposes of applying the provisions of the CBA
regarding the "union-shop" clause.

To rule otherwise would definitely result to a very awkward and unfair situation wherein
the "absorbed" employees shall be in a different if not, better situation than the existing
BPI employees.  The existing BPI employees by virtue of the "union-shop" clause are
required to pay the monthly union dues, remain as members in good standing of the
union otherwise, they shall be terminated from the company, and other union-related
obligations.  On the other hand, the "absorbed" employees shall enjoy the "fruits of
labor" of the petitioner-union and its members for nothing in exchange.  Certainly, this
would disturb industrial peace in the company which is the paramount reason for the
existence of the CBA and the union.

The voluntary arbitrator's interpretation of the provisions of the CBA concerning the
coverage of the "union-shop" clause is at war with the spirit and the rationale why the
Labor Code itself allows the existence of such provision.

The Supreme Court in the case of Manila Mandarin Employees Union vs. NLRC (G.R. No.
76989, September 29, 1987) rule, to quote:

"This Court has held that a valid form of union security, and such a provision in a
collective bargaining agreement is not a restriction of the right of freedom of
association guaranteed by the Constitution.
A closed-shop agreement is an agreement whereby an employer binds himself to hire
only members of the contracting union who must continue to remain members in good
standing to keep their jobs.  It is "THE MOST PRIZED ACHIEVEMENT OF
UNIONISM."  IT ADDS MEMBERSHIP AND COMPULSORY DUES.  By holding out to
loyal members a promise of employment in the closed-shop, it wields group
solidarity." (Emphasis supplied)

Hence, the voluntary arbitrator erred in construing the CBA literally at the expense of
industrial peace in the company.

With the foregoing ruling from this Court, necessarily, the alternative prayer of the
petitioner to require the individual respondents to become members or if they refuse,
for this Court to direct respondent BPI to dismiss them, follows.[15]

Hence, petitioner's present recourse, raising the following issues:

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE
FORMER FEBTC EMPLOYEES SHOULD BE CONSIDERED `NEW' EMPLOYEES OF BPI FOR
PURPOSES OF APPLYING THE UNION SHOP CLAUSE OF THE CBA

II

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE
VOLUNTARY ARBITRATOR'S INTERPRETATION OF THE COVERAGE OF THE UNION SHOP
CLAUSE IS "AT WAR WITH THE SPIRIT AND THE RATIONALE WHY THE LABOR CODE
ITSELF ALLOWS THE EXISTENCE OF SUCH PROVISION"[16]

In essence, the sole issue in this case is whether or not the former FEBTC employees
that were absorbed by petitioner upon the merger between FEBTC and BPI should be
covered by the Union Shop Clause found in the existing CBA between petitioner and
respondent Union.

Petitioner is of the position that the former FEBTC employees are not new employees of
BPI for purposes of applying the Union Shop Clause of the CBA, on this note, petitioner
points to Section 2, Article II of the CBA, which provides:

New employees falling within the bargaining unit as defined in Article I of this
Agreement, who may hereafter be regularly employed by the Bank shall, within
thirty (30) days after they become regular employees, join the Union as a
condition of their continued employment.  It is understood that membership in
good standing in the Union is a condition of their continued employment with the Bank.
[17]
 (Emphases supplied.)

Petitioner argues that the term "new employees" in the Union Shop Clause of the CBA is
qualified by the phrases "who may hereafter be regularly employed" and "after they
become regular employees" which led petitioner to conclude that the "new employees"
referred to in, and contemplated by, the Union Shop Clause of the CBA were only those
employees who were "new" to BPI, on account of having been hired initially on a
temporary or probationary status for possible regular employment at some future date. 
BPI argues that the FEBTC employees absorbed by BPI cannot be considered as "new
employees" of BPI for purposes of applying the Union Shop Clause of the CBA.[18]

According to petitioner, the contrary interpretation made by the Court of Appeals of this
particular CBA provision ignores, or even defies, what petitioner assumes as its clear
meaning and scope which allegedly contradicts the Court's strict and restrictive
enforcement of union security agreements.

We do not agree.

Section 2, Article II of the CBA is silent as to how one becomes a "regular employee" of
the BPI for the first time.  There is nothing in the said provision which requires
that a "new" regular employee first undergo a temporary or probationary
status before being deemed as such under the union shop clause of the CBA.

"Union security" is a generic term which is applied to and comprehends "closed shop,"
"union shop," "maintenance of membership" or any other form of agreement which
imposes upon employees the obligation to acquire or retain union membership as a
condition affecting employment. There is union shop when all new regular employees
are required to join the union within a certain period for their continued employment. 
There is maintenance of membership shop when employees, who are union members
as of the effective date of the agreement, or who thereafter become members, must
maintain union membership as a condition for continued employment until they are
promoted or transferred out of the bargaining unit or the agreement is terminated.  A
closed-shop, on the other hand, may be defined as an enterprise in which, by
agreement between the employer and his employees or their representatives, no
person may be employed in any or certain agreed departments of the enterprise unless
he or she is, becomes, and, for the duration of the agreement, remains a member in
good standing of a union entirely comprised of or of which the employees in interest are
a part.[19]

In the case of Liberty Flour Mills Employees v. Liberty Flour Mills, Inc.,[20] we ruled that:

It is the policy of the State to promote unionism to enable the workers to

negotiate with management on the same level and with more persuasiveness
than if they were to individually and independently bargain for the
improvement of their respective conditions.  To this end, the Constitution
guarantees to them the rights "to self-organization, collective bargaining and
negotiations and peaceful concerted actions including the right to strike in accordance
with law."  There is no question that these purposes could be thwarted if every worker
were to choose to go his own separate way instead of joining his co-employees in
planning collective action and presenting a united front when they sit down to bargain
with their employers.  It is for this reason that the law has sanctioned stipulations for
the union shop and the closed shop as a means of encouraging the workers to join and
support the labor union of their own choice as their representative in the negotiation of
their demands and the protection of their interest vis-Ã -vis the employer. (Emphasis
ours.)
In other words, the purpose of a union shop or other union security arrangement is to
guarantee the continued existence of the union through enforced membership for the
benefit of the workers.

All employees in the bargaining unit covered by a Union Shop Clause in their CBA with
management are subject to its terms.  However, under law and jurisprudence, the
following kinds of employees are exempted from its coverage, namely,
employees who at the time the union shop agreement takes effect are bona fide
members of a religious organization which prohibits its members from joining labor
unions on religious grounds;[21] employees already in the service and already
members of a union other than the majority at the time the union shop
agreement took effect;[22] confidential employees who are excluded from the rank
and file bargaining unit;[23] and employees excluded from the union shop by
express terms of the agreement.

When certain employees are obliged to join a particular union as a requisite for
continued employment, as in the case of Union Security Clauses, this condition is a
valid restriction of the freedom or right not to join any labor organization because it is
in favor of unionism.  This Court, on occasion, has even held that a union security
clause in a CBA is not a restriction of the right of freedom of association guaranteed by
the Constitution.[24]

Moreover, a closed shop agreement is an agreement whereby an employer binds

himself to hire only members of the contracting union who must continue to remain
members in good standing to keep their jobs.  It is "the most prized achievement of
unionism."  It adds membership and compulsory dues.  By holding out to loyal
members a promise of employment in the closed shop, it wields group solidarity.[25]

Indeed, the situation of the former FEBTC employees in this case clearly does not fall
within the first three exceptions to the application of the Union Shop Clause discussed
earlier. No allegation or evidence of religious exemption or prior membership in another
union or engagement as a confidential employee was presented by both parties.  The
sole category therefore in which petitioner may prove its claim is the fourth recognized
exception or whether the former FEBTC employees are excluded by the express terms
of the existing CBA between petitioner and respondent.

To reiterate, petitioner insists that the term "new employees," as the same is used in
the Union Shop Clause of the CBA at issue, refers only to employees hired by BPI
as non-regular employees who later qualify for regular employment and become
regular employees, and not those who, as a legal consequence of a merger, are
allegedly automatically deemed regular employees of BPI.  However, the CBA does not
make a distinction as to how a regular employee attains such a status.  Moreover, there
is nothing in the Corporation Law and the merger agreement mandating the automatic
employment as regular employees by the surviving corporation in the merger.

It is apparent that petitioner hinges its argument that the former FEBTC employees
were absorbed by BPI merely as a legal consequence of a merger based on the
characterization by the Voluntary Arbiter of these absorbed employees as included in
the "assets and liabilities" of the dissolved corporation - assets because they help the
Bank in its operation and liabilities because redundant employees may be terminated
and company benefits will be paid to them, thus reducing the Bank's financial status. 
Based on this ratiocination, she ruled that the same are not new employees of BPI as
contemplated by the CBA at issue, noting that the Certificate of Filing of the Articles of
Merger and Plan of Merger between FEBTC and BPI stated that "x x x the entire assets
and liabilities of FAR EASTERN BANK & TRUST COMPANY will be transferred to and
absorbed by the BANK OF THE PHILIPPINE ISLANDS x x x (underlining supplied)."[26]  In
sum, the Voluntary Arbiter upheld the reasoning of petitioner that the FEBTC employees
became BPI employees by "operation of law" because they are included in the term
"assets and liabilities."

Absorbed FEBTC Employees are Neither Assets nor Liabilities

In legal parlance, however, human beings are never embraced in the term "assets and
liabilities." Moreover, BPI's absorption of former FEBTC employees was neither by
operation of law nor by legal consequence of contract.  There was no government
regulation or law that compelled the merger of the two banks or the absorption of the
employees of the dissolved corporation by the surviving corporation.  Had there been
such law or regulation, the absorption of employees of the non-surviving entities of the
merger would have been mandatory on the surviving corporation.[27]  In the present
case, the merger was voluntarily entered into by both banks presumably for some
mutually acceptable consideration.  In fact, the Corporation Code does not also
mandate the absorption of the employees of the non-surviving corporation by
the surviving corporation in the case of a merger.  Section 80 of the Corporation
Code provides:

SEC. 80. Effects of merger or consolidation. - The merger or consolidation, as provided

in the preceding sections shall have the following effects:

1.  The constituent corporations shall become a single corporation which, in case of
merger, shall be the surviving corporation designated in the plan of merger; and, in
case of consolidation, shall be the consolidated corporation designated in the plan of
consolidation;

2.  The separate existence of the constituent corporations shall cease, except that of
the surviving or the consolidated corporation;

3.  The surviving or the consolidated corporation shall possess all the rights, privileges,
immunities and powers and shall be subject to all the duties and liabilities of a
corporation organized under this Code;

4.  The surviving or the consolidated corporation shall thereupon and thereafter possess
all the rights, privileges, immunities and franchises of each of the constituent
corporations; and all property, real or personal, and all receivables due on whatever
account, including subscriptions to shares and other choses in action, and all and every
other interest of, or belonging to, or due to each constituent corporation, shall be taken
and deemed to be transferred to and vested in such surviving or consolidated
corporation without further act or deed; and

5.  The surviving or the consolidated corporation shall be responsible and liable for all
the liabilities and obligations of each of the constituent corporations in the same
manner as if such surviving or consolidated corporation had itself incurred such
liabilities or obligations; and any claim, action or proceeding pending by or against any
of such constituent corporations may be prosecuted by or against the surviving or
consolidated corporation, as the case may be. Neither the rights of creditors nor any
lien upon the property of any of such constituent corporations shall be impaired by such
merger or consolidated.

Significantly, too, the Articles of Merger and Plan of Merger dated April 7, 2000
did not contain any specific stipulation with respect to the employment contracts of
existing personnel of the non-surviving entity which is FEBTC.  Unlike the Voluntary
Arbitrator, this Court cannot uphold the reasoning that the general stipulation regarding
transfer of FEBTC assets and liabilities to BPI as set forth in the Articles of Merger
necessarily includes the transfer of all FEBTC employees into the employ of BPI and
neither BPI nor the FEBTC employees allegedly could do anything about it.  Even if it is
so, it does not follow that the absorbed employees should not be subject to
the terms and conditions of employment obtaining in the surviving
corporation.

The rule is that unless expressly assumed, labor contracts such as employment
contracts and collective bargaining agreements are not enforceable against a transferee
of an enterprise, labor contracts being in personam, thus binding only between the
parties.  A labor contract merely creates an action in personam and does not create any
real right which should be respected by third parties.  This conclusion draws its force
from the right of an employer to select his employees and to decide when to engage
them as protected under our Constitution, and the same can only be restricted by law
through the exercise of the police power.[28]

Furthermore, this Court believes that it is contrary to public policy to declare the former
FEBTC employees as forming part of the assets or liabilities of FEBTC that were
transferred and absorbed by BPI in the Articles of Merger.  Assets and liabilities, in this
instance, should be deemed to refer only to property rights and obligations of FEBTC
and do not include the employment contracts of its personnel.  A corporation cannot
unilaterally transfer its employees to another employer like chattel.  Certainly, if BPI as
an employer had the right to choose who to retain among FEBTC's employees, FEBTC
employees had the concomitant right to choose not to be absorbed by BPI.  Even
though FEBTC employees had no choice or control over the merger of their employer
with BPI, they had a choice whether or not they would allow themselves to be absorbed
by BPI.  Certainly nothing prevented the FEBTC's employees from resigning or retiring
and seeking employment elsewhere instead of going along with the proposed
absorption.

Employment is a personal consensual contract and absorption by BPI of a former FEBTC

employee without the consent of the employee is in violation of an individual's freedom
to contract.  It would have been a different matter if there was an express provision in
the articles of merger that as a condition for the merger, BPI was being required to
assume all the employment contracts of all existing FEBTC employees with the
conformity of the employees.  In the absence of such a provision in the articles of
merger, then BPI clearly had the business management decision as to whether or not
employ FEBTC's employees. FEBTC employees likewise retained the prerogative to allow
themselves to be absorbed or not; otherwise, that would be tantamount to involuntary
servitude.

There appears to be no dispute that with respect to FEBTC employees that BPI chose
not to employ or FEBTC employees who chose to retire or be separated from
employment instead of "being absorbed," BPI's assumed liability to these employees
pursuant to the merger is FEBTC's liability to them in terms of separation pay,
[29]
 retirement pay[30] or other benefits that may be due them depending on the
circumstances.

Legal Consequences of Mergers

Although not binding on this Court, American jurisprudence on the consequences of

voluntary mergers on the right to employment and seniority rights is persuasive and
illuminating.  We quote the following pertinent discussion from the American Law
Reports:

Several cases have involved the situation where as a result of mergers, consolidations,
or shutdowns, one group of employees, who had accumulated seniority at one plant or
for one employer, finds that their jobs have been discontinued except to the extent that
they are offered employment at the place or by the employer where the work is to be
carried on in the future.  Such cases have involved the question whether such
transferring employees should be entitled to carry with them their accumulated
seniority or whether they are to be compelled to start over at the bottom of the
seniority list in the "new" job. It has been recognized in some cases that the
accumulated seniority does not survive and cannot be transferred to the "new" job.

In Carver v Brien (1942) 315 Ill App 643, 43 NE2d 597, the shop work of three
formerly separate railroad corporations, which had previously operated separate
facilities, was consolidated in the shops of one of the roads.  Displaced employees of
the other two roads were given preference for the new jobs created in the shops of the
railroad which took over the work.  A controversy arose between the employees as to
whether the displaced employees were entitled to carry with them to the new jobs the
seniority rights they had accumulated with their prior employers, that is, whether the
rosters of the three corporations, for seniority purposes, should be "dovetailed" or
whether the transferring employees should go to the bottom of the roster of their new
employer.  Labor representatives of the various systems involved attempted to work
out an agreement which, in effect, preserved the seniority status obtained in the prior
employment on other roads, and the action was for specific performance of this
agreement against a demurring group of the original employees of the railroad which
was operating the consolidated shops.  The relief sought was denied, the court saying
that, absent some specific contract provision otherwise, seniority rights were ordinarily
limited to the employment in which they were earned, and concluding that the contract
for which specific performance was sought was not such a completed and binding
agreement as would support such equitable relief, since the railroad, whose
concurrence in the arrangements made was essential to their effectuation, was not a
party to the agreement.

Where the provisions of a labor contract provided that in the event that a
trucker absorbed the business of another private contractor or common carrier, or was
a party to a merger of lines, the seniority of the employees absorbed or affected
thereby should be determined by mutual agreement between the trucker and the
unions involved, it was held in Moore v International Brotherhood of Teamsters,
etc. (1962, Ky) 356 SW2d 241, that the trucker was not required to absorb the
affected employees as well as the business, the court saying that they could find no
such meaning in the above clause, stating that it dealt only with seniority, and not with
initial employment.  Unless and until the absorbing company agreed to take the
employees of the company whose business was being absorbed, no seniority problem
was created, said the court, hence the provision of the contract could have no
application. Furthermore, said the court, it did not require that the absorbing company
take these employees, but only that if it did take them the question of seniority
between the old and  new  employees  would be worked out by agreement or else be
submitted to the grievance procedure.[31] (Emphasis ours.)

Indeed, from the tenor of local and foreign authorities, in voluntary mergers, absorption
of the dissolved corporation's employees or the recognition of the absorbed employees'
service with their previous employer may be demanded from the surviving corporation
if required by provision of law or contract.  The dissent of Justice Arturo D. Brion tries
to make a distinction as to the terms and conditions of employment of the absorbed
employees in the case of a corporate merger or consolidation which will, in effect, take
away from corporate management the prerogative to make purely business decisions
on the hiring of employees or will give it an excuse not to apply the CBA in force to the
prejudice of its own employees and their recognized collective bargaining agent.  In this
regard, we disagree with Justice Brion.

Justice Brion takes the position that because the surviving corporation continues the
personality of the dissolved corporation and acquires all the latter's rights and
obligations, it is duty-bound to absorb the dissolved corporation's employees, even in
the absence of a stipulation in the plan of merger.  He proposes that this interpretation
would provide the necessary protection to labor as it spares workers from being "left in
legal limbo."

However, there are instances where an employer can validly discontinue or terminate
the employment of an employee without violating his right to security of tenure. 
Among others, in case of redundancy, for example, superfluous employees may be
terminated and such termination would be authorized under Article 283 of the Labor
Code.[32]

Moreover, assuming for the sake of argument that there is an obligation to hire or
absorb all employees of the non-surviving corporation, there is still no basis to conclude
that the terms and conditions of employment under a valid collective bargaining
agreement in force in the surviving corporation should not be made to apply to the
absorbed employees.

The Corporation Code and the Subject

Merger Agreement are Silent on Efficacy,
Terms and Conditions of Employment
Contracts

The lack of a provision in the plan of merger regarding the transfer of employment
contracts to the surviving corporation could have very well been deliberate on the part
of the parties to the merger, in order to grant the surviving corporation the freedom to
choose who among the dissolved corporation's employees to retain, in accordance with
the surviving corporation's business needs.  If terminations, for instance due to
redundancy or labor-saving devices or to prevent losses, are done in good faith, they
would be valid.  The surviving corporation too is duty-bound to protect the rights of its
own employees who may be affected by the merger in terms of seniority and other
conditions of their employment due to the merger.  Thus, we are not convinced that in
the absence of a stipulation in the merger plan the surviving corporation was
compelled, or may be judicially compelled, to absorb all employees under the same
terms and conditions obtaining in the dissolved corporation as the surviving corporation
should also take into consideration the state of its business and its obligations to its
own employees, and to their certified collective bargaining agent or labor union.

Even assuming we accept Justice Brion's theory that in a merger situation the surviving
corporation should be compelled to absorb the dissolved corporation's employees as a
legal consequence of the merger and as a social justice consideration, it bears to
emphasize his dissent also recognizes that the employee may choose to end his
employment at any time by voluntarily resigning.  For the employee to be "absorbed"
by BPI, it requires the employees' implied or express consent.  It is because of this
human element in employment contracts and the personal, consensual nature thereof
that we cannot agree that, in a merger situation, employment contracts are
automatically transferable from one entity to another in the same manner that a
contract pertaining to purely proprietary rights - such as a promissory note or a deed of
sale of property - is perfectly and automatically transferable to the surviving
corporation.

That BPI is the same entity as FEBTC after the merger is but a legal fiction intended as
a tool to adjudicate rights and obligations between and among the merged corporations
and the persons that deal with them. Although in a merger it is as if there is no change
in the personality of the employer, there is in reality a change in the situation of the
employee.  Once an FEBTC employee is absorbed, there are presumably changes in his
condition of employment even if his previous tenure and salary rate is recognized by
BPI.  It is reasonable to assume that BPI would have different rules and regulations and
company practices than FEBTC and it is incumbent upon the former FEBTC employees
to obey these new rules and adapt to their new environment.  Not the least of the
changes in employment condition that the absorbed FEBTC employees must face is the
fact that prior to the merger they were employees of an unorganized establishment and
after the merger they became employees of a unionized company that had an existing
collective bargaining agreement with the certified union. This presupposes that the
union who is party to the collective bargaining agreement is the certified union that
has, in the appropriate certification election, been shown to represent a majority of the
members of the bargaining unit.

Likewise, with respect to FEBTC employees that BPI chose to employ and who also
chose to be absorbed, then due to BPI's blanket assumption of liabilities and obligations
under the articles of merger, BPI was bound to respect the years of service of these
FEBTC employees and to pay the same, or commensurate salaries and other benefits
that these employees previously enjoyed with FEBTC.
As the Union likewise pointed out in its pleadings, there were benefits under the
CBA that the former FEBTC employees did not enjoy with their previous
employer.  As BPI employees, they will enjoy all these CBA benefits upon their
"absorption." Thus, although in a sense BPI is continuing FEBTC's employment of these
absorbed employees, BPI's employment of these absorbed employees was not under
exactly the same terms and conditions as stated in the latter's employment contracts
with FEBTC.  This further strengthens the view that BPI and the former FEBTC
employees voluntarily contracted with each other for their employment in the surviving
corporation.

Proper Appreciation of the Term

"New Employees" Under the CBA

In any event, it is of no moment that the former FEBTC employees retained the regular
status that they possessed while working for their former employer upon their
absorption by petitioner.  This fact would not remove them from the scope of the
phrase "new employees" as contemplated in the Union Shop Clause of the CBA,
contrary to petitioner's insistence that the term "new employees" only refers to those
who are initially hired as non-regular employees for possible regular employment.

The Union Shop Clause in the CBA simply states that "new employees" who during the
effectivity of the CBA "may be regularly employed" by the Bank must join the union
within thirty (30) days from their regularization.  There is nothing in the said clause
that limits its application to only new employees who possess non-regular
status, meaning probationary status, at the start of their employment. Petitioner
likewise failed to point to any provision in the CBA expressly excluding from the Union
Shop Clause new employees who are "absorbed" as regular employees from the
beginning of their employment.  What is indubitable from the Union Shop Clause is that
upon the effectivity of the CBA, petitioner's new regular employees (regardless of the
manner by which they became employees of BPI) are required to join the Union
as a condition of their continued employment.

The dissenting opinion of Justice Brion dovetails with Justice Carpio's view only in their
restrictive interpretation of who are "new employees" under the CBA.  To our dissenting
colleagues, the phrase "new employees" (who are covered by the union shop clause)
should only include new employees who were hired as probationary during the life of
the CBA and were later granted regular status.  They propose that the former FEBTC
employees who were deemed regular employees from the beginning of their
employment with BPI should be treated as a special class of employees and be
excluded from the union shop clause.

Justice Brion himself points out that there is no clear, categorical definition of "new
employee" in the CBA.  In other words, the term "new employee" as used in the union
shop clause is used broadly without any qualification or distinction.  However, the Court
should not uphold an interpretation of the term "new employee" based on the general
and extraneous provisions of the Corporation Code on merger that would defeat, rather
than fulfill, the purpose of the union shop clause.  To reiterate, the provision of the
Article 248(e) of the Labor Code in point mandates that nothing in the said
Code or any other law should stop the parties from requiring membership in a
recognized collective bargaining agent as a condition of employment.
Significantly, petitioner BPI never stretches its arguments so far as to state that the
absorbed employees should be deemed "old employees" who are not covered by the
Union Shop Clause. This is not surprising.

By law and jurisprudence, a merger only becomes effective upon approval by the
Securities and Exchange Commission (SEC) of the articles of merger.  In Associated
Bank v. Court of Appeals,[33] we held:

The procedure to be followed is prescribed under the Corporation Code. Section 79 of

said Code requires the approval by the Securities and Exchange Commission (SEC) of
the articles of merger which, in turn, must have been duly approved by a majority of
the respective stockholders of the constituent corporations.  The same provision further
states that the merger shall be effective only upon the issuance by the SEC of a
certificate of merger.  The effectivity date of the merger is crucial for
determining when the merged or absorbed corporation ceases to exist; and
when its rights, privileges, properties as well as liabilities pass on to the
surviving corporation. (Emphasis ours.)

In other words, even though BPI steps into the shoes of FEBTC as the surviving
corporation, BPI does so at a particular point in time, i.e., the effectivity of the merger
upon the SEC's issuance of a certificate of merger. In fact, the articles of merger
themselves provided that both BPI and FEBTC will continue their respective business
operations until the SEC issues the certificate of merger and in the event SEC does not
issue such a certificate, they agree to hold each other blameless for the non-
consummation of the merger.

Considering the foregoing principle, BPI could have only become the employer of the
FEBTC employees it absorbed after the approval by the SEC of the merger.  If the SEC
did not approve the merger, BPI would not be in the position to absorb the employees
of FEBTC at all.  Indeed, there is evidence on record that BPI made the assignments of
its absorbed employees in BPI effective April 10, 2000, or after the SEC's approval of
the merger.[34]  In other words, BPI became the employer of the absorbed employees
only at some point after the effectivity of the merger, notwithstanding the fact that
the absorbed employees' years of service with FEBTC were voluntarily recognized by
BPI.

Even assuming for the sake of argument that we consider the absorbed FEBTC
employees as "old employees" of BPI who are not members of any union (i.e., it is
their date of hiring by FEBTC and not the date of their absorption that is
considered), this does not necessarily exclude them from the union security clause in
the CBA. The CBA subject of this case was effective from April 1, 1996 until March 31,
2001.  Based on the allegations of the former FEBTC employees themselves, there were
former FEBTC employees who were hired by FEBTC after April 1, 1996 and if their
date of hiring by FEBTC is considered as their date of hiring by BPI, they would
undeniably be considered "new employees" of BPI within the contemplation of the
Union Shop Clause of the said CBA.  Otherwise, it would lead to the absurd situation
that we would discriminate not only between new BPI employees (hired during the life
of the CBA) and former FEBTC employees (absorbed during the life of the CBA) but also
among the former FEBTC employees themselves.  In other words, we would be treating
employees who are exactly similarly situated (i.e., the group of absorbed FEBTC
employees) differently.  This hardly satisfies the demands of equality and justice.

Petitioner limited itself to the argument that its absorbed employees do not fall within
the term "new employees" contemplated under the Union Shop Clause with the
apparent objective of excluding all, and not just some, of the former FEBTC employees
from the application of the Union Shop Clause.

However, in law or even under the express terms of the CBA, there is no special class
of employees called "absorbed employees." In order for the Court to apply or not apply
the Union Shop Clause, we can only classify the former FEBTC employees as either
"old" or "new."  If they are not "old" employees, they are necessarily "new" employees. 
If they are new employees, the Union Shop Clause did not distinguish between new
employees who are non-regular at their hiring but who subsequently become regular
and new employees who are "absorbed" as regular and permanent from the beginning
of their employment.  The Union Shop Clause did not so distinguish, and so neither
must we.

No Substantial Distinction Under the CBA

Between Regular Employees Hired After
Probationary Status and Regular Employees
Hired After the Merger

Verily, we agree with the Court of Appeals that there are no substantial differences
between a newly hired non-regular employee who was regularized weeks or months
after his hiring and a new employee who was absorbed from another bank as a regular
employee pursuant to a merger, for purposes of applying the Union Shop Clause. Both
employees were hired/employed only after the CBA was signed.  At the time they are
being required to join the Union, they are both already regular rank and file employees
of BPI.  They belong to the same bargaining unit being represented by the Union.  They
both enjoy benefits that the Union was able to secure for them under the CBA.  When
they both entered the employ of BPI, the CBA and the Union Shop Clause therein were
already in effect and neither of them had the opportunity to express their preference for
unionism or not.  We see no cogent reason why the Union Shop Clause should not be
applied equally to these two types of new employees, for they are undeniably similarly
situated.

The effect or consequence of BPI's so-called "absorption" of former FEBTC employees

should be limited to what they actually agreed to, i.e.  recognition of the FEBTC
employees' years of service, salary rate and other benefits with their previous
employer. The effect should not be stretched so far as to exempt former FEBTC
employees from the existing CBA terms, company policies and rules which apply to
employees similarly situated.  If the Union Shop Clause is valid as to other new regular
BPI employees, there is no reason why the same clause would be a violation of the
"absorbed" employees' freedom of association.

Non-Application of Union Shop Clause

Contrary to the Policy of the Labor Code
and Inimical to Industrial Peace
It is but fair that similarly situated employees who enjoy the same privileges of a CBA
should be likewise subject to the same obligations the CBA imposes upon them.  A
contrary interpretation of the Union Shop Clause will be inimical to industrial peace and
workers' solidarity.  This unfavorable situation will not be sufficiently addressed by
asking the former FEBTC employees to simply pay agency fees to the Union in lieu of
union membership, as the dissent of Justice Carpio suggests.  The fact remains that
other new regular employees, to whom the "absorbed employees" should be compared,
do not have the option to simply pay the agency fees and they must join the Union or
face termination.

Petitioner's restrictive reading of the Union Shop Clause could also inadvertently open
an avenue, which an employer could readily use, in order to dilute the membership
base of the certified union in the collective bargaining unit (CBU).  By entering into a
voluntary merger with a non-unionized company that employs more workers, an
employer could get rid of its existing union by the simple expedient of arguing that the
"absorbed employees" are not new employees, as are commonly understood to be
covered by a CBA's union security clause.  This could then lead to a new majority within
the CBU that could potentially threaten the majority status of the existing union and,
ultimately, spell its demise as the CBU's bargaining representative.  Such a dreaded but
not entirely far-fetched scenario is no different from the ingenious and creative "union-
busting" schemes that corporations have fomented throughout the years, which this
Court has foiled time and again in order to preserve and protect the valued place of
labor in this jurisdiction consistent with the Constitution's mandate of insuring social
justice.

There is nothing in the Labor Code and other applicable laws or the CBA provision at
issue that requires that a new employee has to be of probationary or non-regular status
at the beginning of the employment relationship.  An employer may confer upon a new
employee the status of regular employment even at the onset of his engagement. 
Moreover, no law prohibits an employer from voluntarily recognizing the length of
service of a new employee with a previous employer in relation to computation of
benefits or seniority but it should not unduly be interpreted to exclude them from the
coverage of the CBA which is a binding contractual obligation of the employer and
employees.

Indeed, a union security clause in a CBA should be interpreted to give meaning and
effect to its purpose, which is to afford protection to the certified bargaining agent and
ensure that the employer is dealing with a union that represents the interests of the
legally mandated percentage of the members of the bargaining unit.

The union shop clause offers protection to the certified bargaining agent by ensuring
that future regular employees who (a) enter the employ of the company during the life
of the CBA; (b) are deemed part of the collective bargaining unit; and (c) whose
number will affect the number of members of the collective bargaining unit will be
compelled to join the union. Such compulsion has legal effect, precisely because the
employer by voluntarily entering in to a union shop clause in a CBA with the certified
bargaining agent takes on the responsibility of dismissing the new regular employee
who does not join the union.

Without the union shop clause or with the restrictive interpretation thereof as proposed
in the dissenting opinions, the company can jeopardize the majority status of the
certified union by excluding from union membership all new regular employees whom
the Company will "absorb" in future mergers and all new regular employees whom the
Company hires as regular from the beginning of their employment without undergoing a
probationary period. In this manner, the Company can increase the number of
members of the collective bargaining unit and if this increase is not accompanied by a
corresponding increase in union membership, the certified union may lose its majority
status and render it vulnerable to attack by another union who wishes to represent the
same bargaining unit.[35]

Or worse, a certified union whose membership falls below twenty percent (20%) of the
total members of the collective bargaining unit may lose its status as a legitimate labor
organization altogether, even in a situation where there is no competing union.[36]  In
such a case, an interested party may file for the cancellation of the union's certificate of
registration with the Bureau of Labor Relations.[37]

Plainly, the restrictive interpretation of the union shop clause would place the certified
union's very existence at the mercy and control of the employer.  Relevantly, only
BPI, the employer appears to be interested in pursuing this case. The former
FEBTC employees have not joined BPI in this appeal.

For the foregoing reasons, Justice Carpio's proposal to simply require the former FEBTC
to pay agency fees is wholly inadequate to compensate the certified union for the loss
of additional membership supposedly guaranteed by compliance with the union shop
clause.  This is apart from the fact that treating these "absorbed employees" as a
special class of new employees does not encourage worker solidarity in the company
since another class of new employees (i.e.  those whose were hired as probationary and
later regularized during the life of the CBA) would not have the option of substituting
union membership with payment of agency fees.

Justice Brion, on the other hand, appears to recognize the inherent unfairness of
perpetually excluding the "absorbed" employees from the ambit of the union shop
clause.  He proposes that this matter be left to negotiation by the parties in the next
CBA.  To our mind, however, this proposal does not sufficiently address the issue. With
BPI already taking the position that employees "absorbed" pursuant to its voluntary
mergers with other banks are exempt from the union shop clause, the chances of the
said bank ever agreeing to the inclusion of such employees in a future CBA is next to nil
- more so, if BPI's narrow interpretation of the union shop clause is sustained by this
Court.

Right of an Employee not to Join a

Union is not Absolute and Must
Give Way to the Collective Good
of All Members of the Bargaining Unit

The dissenting opinions place a premium on the fact that even if the former FEBTC
employees are not old employees, they nonetheless were employed as regular and
permanent employees without a gap in their service.  However, an employee's
permanent and regular employment status in itself does not necessarily exempt him
from the coverage of a union shop clause.
In the past this Court has upheld even the more stringent type of union security
clause, i.e., the closed shop provision, and held that it can be made applicable to old
employees who are already regular and permanent but have chosen not to join a union.
In the early case of Juat v. Court of Industrial Relations,[38] the Court held that an old
employee who had no union may be compelled to join the union even if the collective
bargaining agreement (CBA) imposing the closed shop provision was only entered
into seven years after of the hiring of the said employee.  To quote from that decision:

A closed-shop agreement has been considered as one form of union security whereby
only union members can be hired and workers must remain union members as a
condition of continued employment.  The requirement for employees or workers to
become members of a union as a condition for employment redounds to the benefit
and advantage of said employees because by holding out to loyal members a
promise of employment in the closed-shop the union wields group solidarity.  In fact,
it is said that "the closed-shop contract is the most prized achievement of unionism."

xxxx

This Court had categorically held in the case of Freeman Shirt Manufacturing Co., Inc.,
et al. vs. Court of Industrial Relations, et al., G.R. No. L-16561, Jan. 28, 1961, that
the closed-shop proviso of a collective bargaining agreement entered into between
an employer and a duly authorized labor union is applicable not only to the
employees or laborers that are employed after the collective bargaining
agreement had been entered into but also to old employees who are not
members of any labor union at the time the said collective bargaining
agreement was entered into. In other words, if an employee or laborer is already a
member of a labor union different from the union that entered into a collective
bargaining agreement with the employer providing for a closed-shop, said employee or
worker cannot be obliged to become a member of that union which had entered into a
collective bargaining agreement with the employer as a condition for his continued
employment. (Emphasis and underscoring supplied.)

Although the present case does not involve a closed shop provision that included even
old employees, the Juat example is but one of the cases that laid down the doctrine
that the right not to join a union is not absolute.  Theoretically, there is nothing in law
or jurisprudence to prevent an employer and a union from stipulating that existing
employees (who already attained regular and permanent status but who are not
members of any union) are to be included in the coverage of a union security clause. 
Even Article 248(e) of the Labor Code only expressly exempts old employees who
already have a union from inclusion in a union security clause.[39]

Contrary to the assertion in the dissent of Justice Carpio, Juat  has not been overturned
by Victoriano v. Elizalde Rope Workers' Union[40] nor by Reyes v. Trajano.[41]  The factual
milieus of these three cases are vastly different.

In Victoriano, the issue that confronted the Court was whether or not employees who
were members of the Iglesia ni Kristo (INK) sect could be compelled to join the union
under a closed shop provision, despite the fact that their religious beliefs prohibited
them from joining a union.  In that case, the Court was asked to balance the
constitutional right to religious freedom against a host of other constitutional provisions
including the freedom of association, the non-establishment clause, the non-impairment
of contracts clause, the equal protection clause, and the social justice provision.  In the
end, the Court held that "religious freedom, although not unlimited, is a fundamental
personal right and liberty, and has a preferred position in the hierarchy of values."[42]

However, Victoriano is consistent with Juat  since they both affirm that the right to
refrain from joining a union is not absolute.  The relevant portion of Victoriano is
quoted below:

The right to refrain from joining labor organizations recognized by Section 3 of

the Industrial Peace Act is, however, limited.  The legal protection granted to such
right to refrain from joining is withdrawn by operation of law, where a labor union
and an employer have agreed on a closed shop, by virtue of which the
employer may employ only member of the collective bargaining union, and the
employees must continue to be members of the union for the duration of the
contract in order to keep their jobs.  Thus Section 4 (a) (4) of the Industrial Peace
Act, before its amendment by Republic Act No. 3350, provides that although it would
be an unfair labor practice for an employer "to discriminate in regard to hire or
tenure of employment or any term or condition of employment to encourage or
discourage membership in any labor organization" the employer is, however,
not precluded "from making an agreement with a labor organization to require
as a condition of employment membership therein, if such labor organization
is the representative of the employees." By virtue, therefore, of a closed shop
agreement, before the enactment of Republic Act No. 3350, if any person, regardless of
his religious beliefs, wishes to be employed or to keep his employment, he must
become a member of the collective bargaining union.  Hence, the right of said
employee not to join the labor union is curtailed and withdrawn.[43] (Emphases
supplied.)

If Juat exemplified an exception to the rule that a person has the right not to join a
union, Victoriano merely created an exception to the exception on the ground of
religious freedom.

Reyes, on the other hand, did not involve the interpretation of any union security
clause.  In that case, there was no certified bargaining agent yet since the controversy
arose during a certification election.  In Reyes, the Court highlighted the idea that the
freedom of association included the right not to associate or join a union in resolving
the issue whether or not the votes of members of the INK sect who were part of the
bargaining unit could be excluded in the results of a certification election, simply
because they were not members of the two contesting unions and were expected to
have voted for "NO UNION" in view of their religious affiliation.  The Court upheld the
inclusion of the votes of the INK members since in the previous case of Victoriano we
held that INK members may not be compelled to join a union on the ground of religious
freedom and even without Victoriano every employee has the right to vote "no union"
in a certification election as part of his freedom of association.  However, Reyes  is not
authority for Justice Carpio's proposition that an employee who is not a member of any
union may claim an exemption from an existing union security clause because he
already has regular and permanent status but simply prefers not to join a union.
The other cases cited in Justice Carpio's dissent on this point are likewise
inapplicable. Basa v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores
de Filipinas,[44] Anucension v. National Labor Union,[45] and Gonzales v. Central
Azucarera de Tarlac Labor Union[46] all involved members of the INK.  In line
with Victoriano, these cases upheld the INK members' claimed exemption from the
union security clause on religious grounds.  In the present case, the former FEBTC
employees never claimed any religious grounds for their exemption from the Union
Shop Clause. As for Philips Industrial Development, Inc. v. National Labor Relations
Corporation[47] and Knitjoy Manufacturing, Inc. v. Ferrer-Calleja,[48] the employees who
were exempted from joining the respondent union or who were excluded from
participating in the certification election were found to be not members of the
bargaining unit represented by respondent union and were free to form/join their
own union.  In the case at bar, it is undisputed that the former FEBTC employees were
part of the bargaining unit that the Union represented. Thus, the rulings
in Philips  and Knitjoy have no relevance to the issues at hand.

Time and again, this Court has ruled that the individual employee's right not to join a
union may be validly restricted by a union security clause in a CBA[49] and such union
security clause is not a violation of the employee's constitutional right to freedom of
association.[50]

It is unsurprising that significant provisions on labor protection of the 1987 Constitution

are found in Article XIII on Social Justice.  The constitutional guarantee given the right
to form unions[51] and the State policy to promote unionism[52] have social justice
considerations.  In People's Industrial and Commercial Employees and Workers
Organization v. People's Industrial and Commercial Corporation,[53] we recognized that
"[l]abor, being the weaker in economic power and resources than capital, deserve
protection that is actually substantial and material."

The rationale for upholding the validity of union shop clauses in a CBA, even if they
impinge upon the individual employee's right or freedom of association, is not to protect
the union for the union's sake.  Laws and jurisprudence promote unionism and afford
certain protections to the certified bargaining agent in a unionized company because a
strong and effective union presumably benefits all employees in the bargaining
unit since such a union would be in a better position to demand improved benefits and
conditions of work from the employer. This is the rationale behind the State policy to
promote unionism declared in the Constitution, which was elucidated in the above-cited
case of Liberty Flour Mills Employees v. Liberty Flour Mills, Inc. [54]

In the case at bar, since the former FEBTC employees are deemed covered by the
Union Shop Clause, they are required to join the certified bargaining agent, which
supposedly has gathered the support of the majority of workers within the bargaining
unit in the appropriate certification proceeding.  Their joining the certified union would,
in fact, be in the best interests of the former FEBTC employees for it unites their
interests with the majority of employees in the bargaining unit.  It encourages
employee solidarity and affords sufficient protection to the majority status of the union
during the life of the CBA which are the precisely the objectives of union security
clauses, such as the Union Shop Clause involved herein.  We are indeed not being
called to balance the interests of individual employees as against the State policy of
promoting unionism, since the employees, who were parties in the court below, no
longer contested the adverse Court of Appeals' decision.  Nonetheless, settled
jurisprudence has already swung the balance in favor of unionism, in recognition that
ultimately the individual employee will be benefited by that policy.  In the hierarchy of
constitutional values, this Court has repeatedly held that the right to abstain from
joining a labor organization is subordinate to the policy of encouraging unionism as an
instrument of social justice.

Also in the dissenting opinion of Justice Carpio, he maintains that one of the dire
consequences to the former FEBTC employees who refuse to join the union is the
forfeiture of their retirement benefits.  This is clearly not the case precisely because BPI
expressly recognized under the merger the length of service of the absorbed employees
with FEBTC.  Should some refuse to become members of the union, they may still opt
to retire if they are qualified under the law, the applicable retirement plan, or the CBA,
based on their combined length of service with FEBTC and BPI.  Certainly, there is
nothing in the union shop clause that should be read as to curtail an employee's
eligibility to apply for retirement if qualified under the law, the existing retirement plan,
or the CBA as the case may be.

In sum, this Court finds it reasonable and just to conclude that the Union Shop Clause
of the CBA covers the former FEBTC employees who were hired/employed by BPI
during the effectivity of the CBA in a manner which petitioner describes as
"absorption."  A contrary appreciation of the facts of this case would, undoubtedly, lead
to an inequitable and very volatile labor situation which this Court has consistently
ruled against.

In the case of former FEBTC employees who initially joined the union but later withdrew
their membership, there is even greater reason for the union to request their dismissal
from the employer since the CBA also contained a Maintenance of Membership Clause.

A final point in relation to procedural due process, the Court is not unmindful that the
former FEBTC employees' refusal to join the union and BPI's refusal to enforce the
Union Shop Clause in this instance may have been based on the honest belief that the
former FEBTC employees were not covered by said clause.  In the interest of fairness,
we believe the former FEBTC employees should be given a fresh thirty (30) days from
notice of finality of this decision to join the union before the union demands BPI to
terminate their employment under the Union Shop Clause, assuming said clause has
been carried over in the present CBA and there has been no material change in the
situation of the parties.

WHEREFORE, the petition is hereby DENIED, and the Decision dated September 30,
2003 of the Court of Appeals is AFFIRMED, subject to the thirty (30) day notice
requirement imposed herein.  Former FEBTC employees who opt not to become union
members but who qualify for retirement shall receive their retirement benefits in
accordance with law, the applicable retirement plan, or the CBA, as the case may be.

SO ORDERED.
 A. Article III, sec 1 (“No person shall be deprived of life, liberty or property without due process of
law nor shall any person be denied the equal protection of laws”)
A.1 Due process and equal protection clauses vis-à-vis- Fourteenth Amendment of US Constitution (who
are protected)

G.R. No. 15574           September 17, 1919

SMITH, BELL & COMPANY (LTD.), petitioner,

vs.
JOAQUIN NATIVIDAD, Collector of Customs of the port of Cebu, respondent.

Ross and Lawrence for petitioner.

Attorney-General Paredes for respondent.

MALCOLM, J.:

A writ of mandamus is prayed for by Smith, Bell & Co. (Ltd.), against Joaquin Natividad, Collector of
Customs of the port of Cebu, Philippine Islands, to compel him to issue a certificate of Philippine registry
to the petitioner for its motor vessel Bato. The Attorney-General, acting as counsel for respondent,
demurs to the petition on the general ground that it does not state facts sufficient to constitute a cause of
action. While the facts are thus admitted, and while, moreover, the pertinent provisions of law are clear
and understandable, and interpretative American jurisprudence is found in abundance, yet the issue
submitted is not lightly to be resolved. The question, flatly presented, is, whether Act. No. 2761 of the
Philippine Legislature is valid — or, more directly stated, whether the Government of the Philippine
Islands, through its Legislature, can deny the registry of vessels in its coastwise trade to corporations
having alien stockholders.

FACTS.

Smith, Bell & Co., (Ltd.), is a corporation organized and existing under the laws of the Philippine Islands.
A majority of its stockholders are British subjects. It is the owner of a motor vessel known as the  Bato built
for it in the Philippine Islands in 1916, of more than fifteen tons gross The Bato was brought to Cebu in
the present year for the purpose of transporting plaintiff's merchandise between ports in the Islands.
Application was made at Cebu, the home port of the vessel, to the Collector of Customs for a certificate of
Philippine registry. The Collector refused to issue the certificate, giving as his reason that all the
stockholders of Smith, Bell & Co., Ltd., were not citizens either of the United States or of the Philippine
Islands. The instant action is the result.

LAW.

The Act of Congress of April 29, 1908, repealing the Shipping Act of April 30, 1906 but reenacting a
portion of section 3 of this Law, and still in force, provides in its section 1:

That until Congress shall have authorized the registry as vessels of the United States of vessels
owned in the Philippine Islands, the Government of the Philippine Islands is hereby authorized to
adopt, from time to time, and enforce regulations governing the transportation of merchandise
and passengers between ports or places in the Philippine Archipelago. (35 Stat. at L., 70; Section
3912, U. S. Comp Stat. [1916]; 7 Pub. Laws, 364.)

The Act of Congress of August 29, 1916, commonly known as the Jones Law, still in force, provides in
section 3, (first paragraph, first sentence), 6, 7, 8, 10, and 31, as follows.

SEC. 3. That no law shall be enacted in said Islands which shall deprive any person of life, liberty,
or property without due process of law, or deny to any person therein the equal protection of the
laws. . . .

SEC. 6. That the laws now in force in the Philippines shall continue in force and effect, except as
altered, amended, or modified herein, until altered, amended, or repealed by the legislative
authority herein provided or by Act of Congress of the United States.

SEC. 7. That the legislative authority herein provided shall have power, when not inconsistent
with this Act, by due enactment to amend, alter modify, or repeal any law, civil or criminal,
continued in force by this Act as it may from time to time see fit

This power shall specifically extend with the limitation herein provided as to the tariff to all laws
relating to revenue provided as to the tariff to all laws relating to revenue and taxation in effect in
the Philippines.

SEC. 8. That general legislative power, except as otherwise herein provided, is hereby granted to
the Philippine Legislature, authorized by this Act.

SEC. 10. That while this Act provides that the Philippine government shall have the authority to
enact a tariff law the trade relations between the islands and the United States shall continue to
be governed exclusively by laws of the Congress of the United States: Provided, That tariff acts
or acts amendatory to the tariff of the Philippine Islands shall not become law until they shall
receive the approval of the President of the United States, nor shall any act of the Philippine
Legislature affecting immigration or the currency or coinage laws of the Philippines become a law
until it has been approved by the President of the United States: Provided further, That the
President shall approve or disapprove any act mentioned in the foregoing proviso within six
months from and after its enactment and submission for his approval, and if not disapproved
within such time it shall become a law the same as if it had been specifically approved.

SEC. 31. That all laws or parts of laws applicable to the Philippines not in conflict with any of the
provisions of this Act are hereby continued in force and effect." (39 Stat at L., 546.)

On February 23, 1918, the Philippine Legislature enacted Act No. 2761. The first section of this law
amended section 1172 of the Administrative Code to read as follows:
 SEC. 1172. Certificate of Philippine register. — Upon registration of a vessel of domestic
ownership, and of more than fifteen tons gross, a certificate of Philippine register shall be issued
for it. If the vessel is of domestic ownership and of fifteen tons gross or less, the taking of the
certificate of Philippine register shall be optional with the owner.

"Domestic ownership," as used in this section, means ownership vested in some one or more of
the following classes of persons: (a) Citizens or native inhabitants of the Philippine Islands; (b)
citizens of the United States residing in the Philippine Islands; (c) any corporation or company
composed wholly of citizens of the Philippine Islands or of the United States or of both, created
under the laws of the United States, or of any State thereof, or of thereof, or the managing agent
or master of the vessel resides in the Philippine Islands

Any vessel of more than fifteen gross tons which on February eighth, nineteen hundred and
eighteen, had a certificate of Philippine register under existing law, shall likewise be deemed a
vessel of domestic ownership so long as there shall not be any change in the ownership thereof
nor any transfer of stock of the companies or corporations owning such vessel to person not
included under the last preceding paragraph.

Sections 2 and 3 of Act No. 2761 amended sections 1176 and 1202 of the Administrative Code to read as
follows:

SEC. 1176. Investigation into character of vessel. — No application for a certificate of Philippine

register shall be approved until the collector of customs is satisfied from an inspection of the
vessel that it is engaged or destined to be engaged in legitimate trade and  that it is of domestic
ownership as such ownership is defined in section eleven hundred and seventy-two of this Code.

The collector of customs may at any time inspect a vessel or examine its owner, master, crew, or
passengers in order to ascertain whether the vessel is engaged in legitimate trade and is entitled
to have or retain the certificate of Philippine register.

SEC. 1202. Limiting number of foreign officers and engineers on board vessels. — No Philippine
vessel operating in the coastwise trade or on the high seas shall be permitted to have on board
more than one master or one mate and one engineer who are not citizens of the United States or
of the Philippine Islands, even if they hold licenses under section one thousand one hundred and
ninety-nine hereof. No other person who is not a citizen of the United States or of the Philippine
Islands shall be an officer or a member of the crew of such vessel. Any such vessel which fails to
comply with the terms of this section shall be required to pay an additional tonnage tax of fifty
centavos per net ton per month during the continuance of said failure.

ISSUES.

Predicated on these facts and provisions of law, the issues as above stated recur, namely, whether Act
No 2761 of the Philippine Legislature is valid in whole or in part — whether the Government of the
Philippine Islands, through its Legislature, can deny the registry of vessel in its coastwise trade to
corporations having alien stockholders .

OPINION.

1. Considered from a positive standpoint, there can exist no measure of doubt as to the power of the
Philippine Legislature to enact Act No. 2761. The Act of Congress of April 29, 1908, with its specific
delegation of authority to the Government of the Philippine Islands to regulate the transportation of
merchandise and passengers between ports or places therein, the liberal construction given to the
provisions of the Philippine Bill, the Act of Congress of July 1, 1902, by the courts, and the grant by the
Act of Congress of August 29, 1916, of general legislative power to the Philippine Legislature, are
certainly superabundant authority for such a law. While the Act of the local legislature may in a way be
inconsistent with the Act of Congress regulating the coasting trade of the Continental United States, yet
the general rule that only such laws of the United States have force in the Philippines as are expressly
extended thereto, and the abnegation of power by Congress in favor of the Philippine Islands would leave
no starting point for convincing argument. As a matter of fact, counsel for petitioner does not assail
legislative action from this direction (See U. S. vs. Bull [1910], 15 Phil., 7; Sinnot vs. Davenport [1859] 22
How., 227.)

2. It is from the negative, prohibitory standpoint that counsel argues against the constitutionality of Act No.
2761. The first paragraph of the Philippine Bill of Rights of the Philippine Bill, repeated again in the first
paragraph of the Philippine Bill of Rights as set forth in the Jones Law, provides "That no law shall be
enacted in said Islands which shall deprive any person of life, liberty, or property without due process of
law, or deny to any person therein the equal protection of the laws." Counsel says that Act No. 2761
denies to Smith, Bell & Co., Ltd., the equal protection of the laws because it, in effect, prohibits the
corporation from owning vessels, and because classification of corporations based on the citizenship of
one or more of their stockholders is capricious, and that Act No. 2761 deprives the corporation of its
properly without due process of law because by the passage of the law company was automatically
deprived of every beneficial attribute of ownership in the Bato and left with the naked title to a boat it could
not use .

The guaranties extended by the Congress of the United States to the Philippine Islands have been used
in the same sense as like provisions found in the United States Constitution. While the "due process of
law and equal protection of the laws" clause of the Philippine Bill of Rights is couched in slightly different
words than the corresponding clause of the Fourteenth Amendment to the United States Constitution, the
first should be interpreted and given the same force and effect as the latter. (Kepner vs. U.S. [1904], 195
U. S., 100; Sierra vs. Mortiga [1907], 204 U. S.,.470; U. S. vs. Bull [1910], 15 Phil., 7.) The meaning of the
Fourteenth Amendment has been announced in classic decisions of the United States Supreme Court.
Even at the expense of restating what is so well known, these basic principles must again be set down in
order to serve as the basis of this decision.

The guaranties of the Fourteenth Amendment and so of the first paragraph of the Philippine Bill of Rights,
are universal in their application to all person within the territorial jurisdiction, without regard to any
differences of race, color, or nationality. The word "person" includes aliens. (Yick Wo vs. Hopkins [1886],
118 U. S., 356; Truax vs. Raich [1915], 239 U. S., 33.) Private corporations, likewise, are "persons" within
the scope of the guaranties in so far as their property is concerned. (Santa Clara County vs. Southern
Pac. R. R. Co. [1886], 118.U. S., 394; Pembina Mining Co. vs. Pennsylvania [1888],.125 U. S., 181
Covington & L. Turnpike Road Co. vs. Sandford [1896], 164 U. S., 578.) Classification with the end in
view of providing diversity of treatment may be made among corporations, but must be based upon some
reasonable ground and not be a mere arbitrary selection (Gulf, Colorado & Santa Fe Railway Co.  vs. Ellis
[1897],.165 U. S., 150.) Examples of laws held unconstitutional because of unlawful discrimination against
aliens could be cited. Generally, these decisions relate to statutes which had attempted arbitrarily to forbid
aliens to engage in ordinary kinds of business to earn their living. (State  vs. Montgomery [1900], 94
Maine, 192, peddling — but see. Commonwealth vs. Hana [1907], 195 Mass., 262; Templar vs. Board of
Examiners of Barbers [1902], 131 Mich., 254, barbers; Yick Wo vs. Hopkins [1886], 118 U. S.,.356,
discrimination against Chinese; Truax vs. Raich [1915], 239 U. S., 33; In re Parrott [1880], 1 Fed , 481;
Fraser vs. McConway & Torley Co. [1897], 82 Fed , 257; Juniata Limestone Co. vs. Fagley [1898], 187
Penn., 193, all relating to the employment of aliens by private corporations.)

A literal application of general principles to the facts before us would, of course, cause the inevitable
deduction that Act No. 2761 is unconstitutional by reason of its denial to a corporation, some of whole
members are foreigners, of the equal protection of the laws. Like all beneficient propositions, deeper
research discloses provisos. Examples of a denial of rights to aliens notwithstanding the provisions of the
Fourteenth Amendment could be cited. (Tragesser vs. Gray [1890], 73 Md., 250, licenses to sell
spirituous liquors denied to persons not citizens of the United States; Commonwealth  vs. Hana [1907],
195 Mass , 262, excluding aliens from the right to peddle; Patsone vs. Commonwealth of Pennsylvania
[1914], 232 U. S. , 138, prohibiting the killing of any wild bird or animal by any unnaturalized foreign-born
resident; Ex parte Gilleti [1915], 70 Fla., 442, discriminating in favor of citizens with reference to the taking
for private use of the common property in fish and oysters found in the public waters of the State;
Heim vs. McCall [1915], 239 U. S.,.175, and Crane vs. New York [1915], 239 U. S., 195, limiting
employment on public works by, or for, the State or a municipality to citizens of the United States.)

One of the exceptions to the general rule, most persistent and far reaching in influence is, that neither the
Fourteenth Amendment to the United States Constitution, broad and comprehensive as it is, nor any other
amendment, "was designed to interfere with the power of the State, sometimes termed its `police power,'
to prescribe regulations to promote the health, peace, morals, education, and good order of the people,
and legislate so as to increase the industries of the State, develop its resources and add to its wealth and
prosperity. From the very necessities of society, legislation of a special character, having these objects in
view, must often be had in certain districts." (Barbier vs. Connolly [1884], 113 U.S., 27; New Orleans Gas
Co. vs. Lousiana Light Co. [1885], 115 U.S., 650.) This is the same police power which the United States
Supreme Court say "extends to so dealing with the conditions which exist in the state as to bring out of
them the greatest welfare in of its people." (Bacon vs. Walker [1907], 204 U.S., 311.) For quite similar
reasons, none of the provision of the Philippine Organic Law could could have had the effect of denying to
the Government of the Philippine Islands, acting through its Legislature, the right to exercise that most
essential, insistent, and illimitable of powers, the sovereign police power, in the promotion of the general
welfare and the public interest. (U. S. vs. Toribio [1910], 15 Phil., 85; Churchill and Tait vs. Rafferty
[1915], 32 Phil., 580; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) Another notable
exception permits of the regulation or distribution of the public domain or the common property or
resources of the people of the State, so that use may be limited to its citizens. (Ex parte Gilleti [1915], 70
Fla., 442; McCready vs. Virginia [1876], 94 U. S., 391; Patsone vs. Commonwealth of Pennsylvania
[1914], 232U. S., 138.) Still another exception permits of the limitation of employment in the construction
of public works by, or for, the State or a municipality to citizens of the United States or of the State.
(Atkin vs. Kansas [1903],191 U. S., 207; Heim vs. McCall [1915], 239 U.S., 175; Crane vs. New York
[1915], 239 U. S., 195.) Even as to classification, it is admitted that a State may classify with reference to
the evil to be prevented; the question is a practical one, dependent upon experience.
(Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S., 138.)

To justify that portion of Act no. 2761 which permits corporations or companies to obtain a certificate of
Philippine registry only on condition that they be composed wholly of citizens of the Philippine Islands or
of the United States or both, as not infringing Philippine Organic Law, it must be done under some one of
the exceptions here mentioned This must be done, moreover, having particularly in mind what is so often
of controlling effect in this jurisdiction — our local experience and our peculiar local conditions.

To recall a few facts in geography, within the confines of Philippine jurisdictional limits are found more
than three thousand islands. Literally, and absolutely, steamship lines are, for an Insular territory thus
situated, the arteries of commerce. If one be severed, the life-blood of the nation is lost. If on the other
hand these arteries are protected, then the security of the country and the promotion of the general
welfare is sustained. Time and again, with such conditions confronting it, has the executive branch of the
Government of the Philippine Islands, always later with the sanction of the judicial branch, taken a firm
stand with reference to the presence of undesirable foreigners. The Government has thus assumed to act
for the all-sufficient and primitive reason of the benefit and protection of its own citizens and of the self-
preservation and integrity of its dominion. (In re Patterson [1902], 1 Phil., 93; Forbes vs. Chuoco, Tiaco
and Crossfield [1910], 16 Phil., 534;.228 U.S., 549; In re McCulloch Dick [1918], 38 Phil., 41.) Boats
owned by foreigners, particularly by such solid and reputable firms as the instant claimant, might indeed
traverse the waters of the Philippines for ages without doing any particular harm. Again, some evilminded
foreigner might very easily take advantage of such lavish hospitality to chart Philippine waters, to obtain
valuable information for unfriendly foreign powers, to stir up insurrection, or to prejudice Filipino or
American commerce. Moreover, under the Spanish portion of Philippine law, the waters within the
domestic jurisdiction are deemed part of the national domain, open to public use. (Book II, Tit. IV, Ch. I,
Civil Code; Spanish Law of Waters of August 3, 1866, arts 1, 2, 3.) Common carriers which in the
Philippines as in the United States and other countries are, as Lord Hale said, "affected with a public
interest," can only be permitted to use these public waters as a privilege and under such conditions as to
the representatives of the people may seem wise. (See De Villata vs. Stanley [1915], 32 Phil., 541.)

In Patsone vs. Commonwealth of Pennsylvania ([1913], 232 U.S., 138), a case herein before mentioned,
Justice Holmes delivering the opinion of the United States Supreme Court said:

This statute makes it unlawful for any unnaturalized foreign-born resident to kill any wild bird or
animal except in defense of person or property, and `to that end' makes it unlawful for such
foreign-born person to own or be possessed of a shotgun or rifle; with a penalty of $25 and a
forfeiture of the gun or guns. The plaintiff in error was found guilty and was sentenced to pay the
abovementioned fine. The judgment was affirmed on successive appeals. (231 Pa., 46; 79 Atl.,
928.) He brings the case to this court on the ground that the statute is contrary to the 14th
Amendment and also is in contravention of the treaty between the United States and Italy, to
which latter country the plaintiff in error belongs .

Under the 14th Amendment the objection is twofold; unjustifiably depriving the alien of property,
and discrimination against such aliens as a class. But the former really depends upon the latter,
since it hardly can be disputed that if the lawful object, the protection of wild life
(Geer vs. Connecticut, 161 U.S., 519; 40 L. ed., 793; 16 Sup. Ct. Rep., 600), warrants the
discrimination, the, means adopted for making it effective also might be adopted. . . .

The discrimination undoubtedly presents a more difficult question. But we start with reference to
the evil to be prevented, and that if the class discriminated against is or reasonably might be
considered to define those from whom the evil mainly is to be feared, it properly may be picked
out. A lack of abstract symmetry does not matter. The question is a practical one, dependent
upon experience. . . .

The question therefore narrows itself to whether this court can say that the legislature of
Pennsylvania was not warranted in assuming as its premise for the law that resident
unnaturalized aliens were the peculiar source of the evil that it desired to prevent.
(Barrett vs. Indiana,. 229 U.S., 26, 29; 57 L. ed., 1050, 1052; 33 Sup. Ct. Rep., 692.)

Obviously the question, so stated, is one of local experience, on which this court ought to be very
slow to declare that the state legislature was wrong in its facts (Adams vs. Milwaukee, 228 U.S.,
572, 583; 57 L. ed., 971,.977; 33 Sup. Ct. Rep., 610.) If we might trust popular speech in some
states it was right; but it is enough that this court has no such knowledge of local conditions as to
be able to say that it was manifestly wrong. . . .

Judgment affirmed.

We are inclined to the view that while Smith, Bell & Co. Ltd., a corporation having alien stockholders, is
entitled to the protection afforded by the due-process of law and equal protection of the laws clause of the
Philippine Bill of Rights, nevertheless, Act No. 2761 of the Philippine Legislature, in denying to
corporations such as Smith, Bell &. Co. Ltd., the right to register vessels in the Philippines coastwise
trade, does not belong to that vicious species of class legislation which must always be condemned, but
does fall within authorized exceptions, notably, within the purview of the police power, and so does not
offend against the constitutional provision.

This opinion might well be brought to a close at this point. It occurs to us, however, that the legislative
history of the United States and the Philippine Islands, and, probably, the legislative history of other
countries, if we were to take the time to search it out, might disclose similar attempts at restriction on the
right to enter the coastwise trade, and might thus furnish valuable aid by which to ascertain and, if
possible, effectuate legislative intention.
 3. The power to regulate commerce, expressly delegated to the Congress by the Constitution,
includes the power to nationalize ships built and owned in the United States by registries and
enrollments, and the recording of the muniments of title of American vessels. The Congress "may
encourage or it may entirely prohibit such commerce, and it may regulate in any way it may see fit
between these two extremes." (U.S. vs. Craig [1886], 28 Fed., 795; Gibbons vs. Ogden [1824], 9
Wheat., 1; The Passenger Cases [1849], 7 How., 283.)

Acting within the purview of such power, the first Congress of the United States had not been long
convened before it enacted on September 1, 1789, "An Act for Registering and Clearing Vessels,
Regulating the Coasting Trade, and for other purposes." Section 1 of this law provided that for any ship or
vessel to obtain the benefits of American registry, it must belong wholly to a citizen or citizens of the
United States "and no other." (1 Stat. at L., 55.) That Act was shortly after repealed, but the same idea
was carried into the Acts of Congress of December 31, 1792 and February 18, 1793. (1 Stat. at L., 287,
305.).Section 4 of the Act of 1792 provided that in order to obtain the registry of any vessel, an oath shall
be taken and subscribed by the owner, or by one of the owners thereof, before the officer authorized to
make such registry, declaring, "that there is no subject or citizen of any foreign prince or state, directly or
indirectly, by way of trust, confidence, or otherwise, interested in such vessel, or in the profits or issues
thereof." Section 32 of the Act of 1793 even went so far as to say "that if any licensed ship or vessel shall
be transferred to any person who is not at the time of such transfer a citizen of and resident within the
United States, ... every such vessel with her tackle, apparel, and furniture, and the cargo found on board
her, shall be forefeited." In case of alienation to a foreigner, Chief Justice Marshall said that all the
privileges of an American bottom were ipso facto  forfeited. (U.S. vs. Willings and Francis [1807], 4
Cranch, 48.) Even as late as 1873, the Attorney-General of the United States was of the opinion that
under the provisions of the Act of December 31, 1792, no vessel in which a foreigner is directly or
indirectly interested can lawfully be registered as a vessel of the United. States. (14 Op. Atty.-Gen. [U.S.],
340.)

These laws continued in force without contest, although possibly the Act of March 3, 1825, may have
affected them, until amended by the Act of May 28, 1896 (29 Stat. at L., 188) which extended the
privileges of registry from vessels wholly owned by a citizen or citizens of the United States to
corporations created under the laws of any of the states thereof. The law, as amended, made possible the
deduction that a vessel belonging to a domestic corporation was entitled to registry or enrollment even
though some stock of the company be owned by aliens. The right of ownership of stock in a corporation
was thereafter distinct from the right to hold the property by the corporation (Humphreys vs. McKissock
[1890], 140 U.S., 304; Queen vs. Arnaud [1846], 9 Q. B., 806; 29 Op. Atty.-Gen. [U.S.],188.)

On American occupation of the Philippines, the new government found a substantive law in operation in
the Islands with a civil law history which it wisely continued in force Article fifteen of the Spanish Code of
Commerce permitted any foreigner to engage in Philippine trade if he had legal capacity to do so under
the laws of his nation. When the Philippine Commission came to enact the Customs Administrative Act
(No. 355) in 1902, it returned to the old American policy of limiting the protection and flag of the United
States to vessels owned by citizens of the United States or by native inhabitants of the Philippine Islands
(Sec. 117.) Two years later, the same body reverted to the existing Congressional law by permitting
certification to be issued to a citizen of the United States or to a corporation or company created under
the laws of the United States or of any state thereof or of the Philippine Islands (Act No. 1235, sec. 3.)
The two administration codes repeated the same provisions with the necessary amplification of inclusion
of citizens or native inhabitants of the Philippine Islands (Adm. Code of 1916, sec. 1345; Adm. Code of
1917, sec. 1172). And now Act No. 2761 has returned to the restrictive idea of the original Customs
Administrative Act which in turn was merely a reflection of the statutory language of the first American
Congress.

Provisions such as those in Act No. 2761, which deny to foreigners the right to a certificate of Philippine
registry, are thus found not to be as radical as a first reading would make them appear.
Without any subterfuge, the apparent purpose of the Philippine Legislature is seen to be to enact an anti-
alien shipping act. The ultimate purpose of the Legislature is to encourage Philippine ship-building. This,
without doubt, has, likewise, been the intention of the United States Congress in passing navigation or
tariff laws on different occasions. The object of such a law, the United States Supreme Court once said,
was to encourage American trade, navigation, and ship-building by giving American ship-owners
exclusive privileges. (Old Dominion Steamship Co. vs. Virginia [1905], 198 U.S., 299; Kent's
Commentaries, Vol. 3, p. 139.)

In the concurring opinion of Justice Johnson in Gibbons vs. Ogden ([1824], 9 Wheat., 1) is found the
following:

Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly
of that character, and forms part of an extensive system, the object of which is to encourage
American shipping, and place them on an equal footing with the shipping of other nations. Almost
every commercial nation reserves to its own subjects a monopoly of its coasting trade; and a
countervailing privilege in favor of American shipping is contemplated, in the whole legislation of
the United States on this subject. It is not to give the vessel an American character, that the
license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to
confer on her American privileges, as contradistinguished from foreign; and to preserve the.
Government from fraud by foreigners, in surreptitiously intruding themselves into the American
commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole
system is projected.

The United States Congress in assuming its grave responsibility of legislating wisely for a new country did
so imbued with a spirit of Americanism. Domestic navigation and trade, it decreed, could only be carried
on by citizens of the United States. If the representatives of the American people acted in this patriotic
manner to advance the national policy, and if their action was accepted without protest in the courts, who
can say that they did not enact such beneficial laws under the all-pervading police power, with the prime
motive of safeguarding the country and of promoting its prosperity? Quite similarly, the Philippine
Legislature made up entirely of Filipinos, representing the mandate of the Filipino people and the
guardian of their rights, acting under practically autonomous powers, and imbued with a strong sense of
Philippinism, has desired for these Islands safety from foreign interlopers, the use of the common
property exclusively by its citizens and the citizens of the United States, and protection for the common
good of the people. Who can say, therefore, especially can a court, that with all the facts and
circumstances affecting the Filipino people before it, the Philippine Legislature has erred in the enactment
of Act No. 2761?

Surely, the members of the judiciary are not expected to live apart from active life, in monastic seclusion
amidst dusty tomes and ancient records, but, as keen spectators of passing events and alive to the
dictates of the general — the national — welfare, can incline the scales of their decisions in favor of that
solution which will most effectively promote the public policy. All the presumption is in favor of the
constitutionally of the law and without good and strong reasons, courts should not attempt to nullify the
action of the Legislature. "In construing a statute enacted by the Philippine Commission (Legislature), we
deem it our duty not to give it a construction which would be repugnant to an Act of Congress, if the
language of the statute is fairly susceptible of another construction not in conflict with the higher law." (In
re Guariña [1913], 24. Phil., 36; U.S. vs. Ten Yu [1912], 24 Phil., 1.) That is the true construction which
will best carry legislative intention into effect.

With full consciousness of the importance of the question, we nevertheless are clearly of the opinion that
the limitation of domestic ownership for purposes of obtaining a certificate of Philippine registry in the
coastwise trade to citizens of the Philippine Islands, and to citizens of the United States, does not violate
the provisions of paragraph 1 of section 3 of the Act of Congress of August 29, 1916 No treaty right relied
upon Act No. 2761 of the Philippine Legislature is held valid and constitutional .
The petition for a writ of mandamus  is denied, with costs against the petitioner. So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street, Avanceña and Moir, JJ., concur.

A.2 Origin, Evolution and meaning of due process:

- The great Charter of the liberties of England and liberties of the forest

1. G.R. No. 211362               February 24, 2015

FIRST CLASS CADET ALDRIN JEFF P. CUDIA of the Philippine Military Academy, represented by
his father RENATO P. CUDIA, who also acts on his own behalf, and BERTENI CATALUNA
CAUSING, Petitioners,
vs.
THE SUPERINTENDENT OF THE PHILIPPINE MILITARY ACADEMY (PMA), THE HONOR
COMMITTEE (HC) OF 2014 OF THE PMA and HC MEMBERS, and the CADET REVIEW AND
APPEALS BOARD (CRAB), Respondents.

x-----------------------x

FILIPINA P. CUDIA, in behalf of CADET FIRST CLASS ALDRIN JEFF P. CUDIA, and on her own
behalf, Petitioner-Intervenor.

DECISION

PERALTA, J.:

The true test of a cadet's character as a leader rests on his personal commitment to uphold what is
morally and ethically righteous at the most critical and trying times, and at the most challenging
circumstances. When a cadet must face a dilemma between what is true and right as against his security,
well-being, pleasures and comfort, or dignity, what is at stake is his honor and those that [define] his
values. A man of an honorable character does not think twice and chooses the fore. This is the essence
of and. the Spirit of the Honor Code - it is championing truth and righteousness even if it may mean the
surrender of one's basic rights and privileges.1

The Procedural Antecedents

Six days prior to the March 16, 2014 graduation ceremonies of the Philippine Military Academy (PMA),
petitioners Renato P. Cudia, acting for himself and in behalf of his son, Cadet First Class Aldrin Jeff P.
Cudia (Cadet JCL Cudia), and Berteni Catalufta Causing filed this petition for certiorari, prohibition, and
mandamus with application for extremely urgent temporary restraining order (TRO). 2

In a Resolution dated March 1 7, 2014, the Court denied the prayer for TRO and instead, required
respondents to file their comment on the petition. 3

On March 25, 2014, Filipina P. Cudia, acting for herself and in behalf of her son Cadet 1 CL Cudia, filed a
motion for leave to intervene, attaching thereto the petition-in-intervention. 4 Per Resolution dated March
31, 2014, the Court granted the motion and resolved to await respondents' comment on the petition. 5

A manifestation was then filed by petitioners on April 3, 2014, recommending the admission of the
petition-in-intervention and adopting it as an integral part of their petition. 6 On May 20, 2014, petitioner-
intervenor filed a manifestation with motion for leave to admit the Final Investigation Report of the
Commission on Human Rights (CHR) dated April 25, 2014. 7 The Report8 was relative to CHR-CAR Case
No. 2014-0029 filed by the spouses Renato and Filipina Cudia (Spouses Cudia), for themselves and in
behalf of their son, against the PMA Honor Committee (HC) members and Major Vladimir P. Gracilla (Maj.
Gracilla)9 for violation of Cadet lCL Cudia's rights to due process, education, and privacy of
communication. Subsequently, on June 3, 2014, petitioners filed a motion for leave to adopt the
submission of the CHR Report.10 The manifestation was granted and the motion was noted by the Court
in its Resolution dated July 7, 2014.

After filing three motions for extension of time, 11 respondents filed their Consolidated Comment 12 on June
19, 2014. In a motion, petitioner-intervenor filed a Reply, which was later adopted by
petitioners.13 Submitted as Annex "A" of the Reply was a copy of the CHR Resolution dated May 22, 2014
regarding CHR-CAR Case No. 2014-0029. 14 We noted and granted the same on August 11, 2014 and
October 13, 2014.

Petitioner-intervenor twice filed a manifestation with motion to submit the case for early resolution, 15 which
the Court noted in a Resolution dated August 11, 2014 and October 3, 2014. 16

The Facts

Cadet 1 CL Cudia was a member of Siklab Diwa Class of 2014 of the PMA, the country's premiere
military academy located at Fort Gregorio del Pilar in Baguio City. He belonged to the "A" Company and
was the Deputy Baron of his class. As claimed by petitioners and petitioner-intervenor (hereinafter
collectively called "petitioners," unless otherwise indicated), he was supposed to graduate with honors as
the class salutatorian, receive the Philippine Navy Saber as the top Navy cadet graduate, and be
commissioned as an ensign of the Philippine Navy.

On November 14, 2013, the combined classes of the Navy and Air Force 1 CL cadets had a lesson
examination (LE) on Operations Research (OR432) under Dr. Maria Monica C. Costales (Dr. Costales) at
the PMAFI Room. Per published schedule from the Headquarters Academic Group, the 4th period class
in OR432 was from 1 :30-3:00 p.m. (1330H-1500H), while the 5th period class in ENG412 was from 3:05-
4:05 p.m. (1505H-1605H).
Five days after, Professor Juanita Berong (Prof. Berong) of the 5th period class issued a Delinquency
Report (DR) against Cadet 1 CL Cudia because he was "[/]ate for two (2) minutes in his Eng 412 class x x
x. "17 Cadets 1 CL Narciso, Arcangel, Miranda, Pontillas, Diaz, Otila, and Dela Cruz were also reported
late for five minutes.18

On December 4, 2013, the DRs reached the Department of Tactical Officers. They were logged and
transmitted to the Company Tactical Officers ( CTO) for explanation of the concerned cadets. Two days
later, Cadet lCL Cudia received his DR.

In his Explanation of Report dated December 8, 2013, Cadet lCL Cudia reasoned out that: "I came
directly from OR432 Class. We were dismissed a bit late by our instructor Sir." 19

On December 19, 2013, Major Rommel Dennis Hindang (Maj. Hindang), the CTO of Cadet 1 CL Cudia,
meted out to him the penalty of 11 demerits and 13 touring hours. Immediately, Cadet lCL Cudia clarified
with Maj. Hindang his alleged violation. The latter told him that the basis of the punishment was the result
of his conversation with Dr. Costales, who responded that she never dismissed her class late, and the
protocol to dismiss the class 10-15 minutes earlier than scheduled. When he expressed his intention to
appeal and seek reconsideration of the punishment, he was · advised to put the request in writing. Hence,
that same day, Cadet 1 CL Cudia addressed his Request for Reconsideration of Meted Punishment to
Maj. Benjamin L. Leander, Senior Tactical Officer (STO), asserting:

I strongly believe that I am not in control of the circumstances, our 4th period class ended 1500H and our
5th period class, which is ENG412, started 1500H also. Immediately after 4t period class, I went to my
next class without any intention of being late Sir.20

A day after, Maj. Leander instructed Maj. Hindang to give his comments on the request of Cadet 1 CL
Cudia and to indicate if there were other cadets belonging to the same section who were also late.

On December 28, 2013, Maj. Hindang submitted his reply to Maj. Leander pointing out that, based on his
investigation, the 4th period class was not dismissed late. As a result, Maj. Leander sustained the penalty
imposed. Petitioners alleged that Cadet 1 CL Cudia came to know of the denial of his request only on
January 24, 2014 upon inquiry with Maj. Leander.

Several days passed, and on January 7, 2014, Cadet lCL Cudia was informed that Maj. Hindang reported
him to the HC21 for violation of the Honor Code. The Honor Report stated:

Lying that is giving statement that perverts the truth in his written appeal, stating that his 4th period class
ended at l 500H that made him late in the succeeding class. 22

Upon asking the HC Chairman, Cadet 1 CL Mike Anthony P. Mogol (Cadet 1 CL Mogol), as to what Maj.
Hindang meant in his Report, Cadet lCL Cudia learned that it was based on Maj. Hindang's conversations
with their instructors and classmates as well as his statement in the request for reconsideration to Maj.
Leander. He then verbally applied for and was granted an extension of time to answer the charge against
him because Dr. Costales, who could shed light on the matter, was on emergency leave.

On January 13, 2014, Dr. Costales sent text messages to Cadet lCL Cudia, conveying:

Gud pm cdt cudia. Mam belandres gave me bkground na. She told me its a report dated november. When
maj hindang ask me, no time referens. (04:25:11 P.M.)

All the while I thot he was refering to dismisal during last day last december. Whc i told, i wud presume
they wil finish early bee its grp work. (04:29:21 P.M.)23
The next day, Cadets lCL Cudia and Arcangel approached Dr. Costales, who reaffirmed that she and Maj.
Hindang were not in the same time reference when the latter asked her.

Later, Cadet 1 CL Cudia submitted his letter of explanation on the Honor Report. He averred:

Sir, We had an LE that day (14 November 2013) in OR432 class. When the first bell rang (1455), I stood
up, reviewed my paper and submitted it to my instructor, Ms. Costales. After which, I and Cadet lcl
Arcangel asked for some query with regards (sic) to the deductions of our previous LE. Our instructor
gladly answered our question. She then told me that she will give the copy of our section grade, so I
waited at the hallway outside the ACAD5 office, and then she came out of the room and gave me a copy
of the grades. Cadet Arcangel, Cadet Narciso and I immediately went to our 5ti period class which is
ENG412.

With these statements, I would like to clarify the following:

1. How could this be lying?

2. What is wrong with the side of Maj. Hindang (why did he come up to that honor report)?

3. What are his assumptions?

I appeal, in the name of clarity, fairness and truth[,] that my case be reopened and carefully reviewed for I
did not violate the honor code/system, I can answer NO to both questions (Did I intend to deceive? Did I
intend to take undue advantage?) and for the following reasons:

1. The honor report of Maj. Hindang was already settled and finalized given the fact that no face-
to-face personal conversation with Ms. Costales was conducted to clarify what and when exactly
was the issue at hand.

2. Statements of the respondents support my explanation.

3. My explanation to my appeal to my DR (Request for reconsideration of meted punishment)

further supports my explanation in my delinquency report.

4. My understanding of the duration of the "CLASS" covers not just a lecture in a typical
classroom instruction but includes every transaction and communication a teacher does with her
students, especially that in our case some cadets asked for queries, and I am given instruction by
which (sic) were directly related to our CLASS. Her transaction and communication with our other
classmates may have already ended but ours extended for a little bit.

I agree and consider that because Cadet CUDIA is under my instruction to wait, and the other
cadets still have business with me, it is reasonable enough for him to say that "Our class was
dismissed a bit late" (dealing with matter of seconds or a minute particularly 45 seconds to 1
minute and 30 seconds)

And with concern to (sic) OR432 class, I can say it ended on time (1500H).

(signed)
M COSTALES

w/ attached certification
 5. I was transparent and honest in explaining the 2-minute delay and did not attempt to conceal
anything that happened or I did.

6. Furthermore, CPT DULA WAN PA, the Tactical Officer of Hawk Company[,] and I had a
conversation with regards (sic) to the same matter for which he can give important points of my
case.

7. Cadet lcl DIAZ "D" Co can also stand as a witness that I waited for Ms. Costales. 24

On January 15, 2014, the HC constituted a team to conduct a preliminary investigation on the reported
honor violation of Cadet 1 CL Cudia. The Foxtrot Company was designated as the investigating team and
was composed of Cadet 1 CL Hasigan as Presiding Officer, and Cadets 1 CL Mogol, lCL Raguindin, 2CL
Gumilab, 2CL Saldua, 3CL Espejo, and 3CL Poncardas as members. 25 Soon after, the team submitted its
Preliminary Investigation Report recommending that the case be formalized.

The formal investigation against Cadet 1 CL Cu di a then ensued. The Presiding Officer was Cadet 1 CL
Rhona K. Salvacion, while the nine (9) voting members were Cadets lCL Jairus 0. Fantin, lCL Bryan
Sonny S. Arlegui, 1 CL Kim Adrian R. Martal, 1 CL J eanelyn P. Cabrido, 1 CL ShuAydan G. Ayada, 1 CL
Dalton John G. Lagura, 2CL Renato A. Carifio, Jr., 2CL Arwi C. Martinez, and 2CL Niko Angelo C.
Tarayao.26 Acting as recorders tasked to document the entire proceedings were 4CL Jennifer A.
Cuarteron and 3CL Leoncio Nico A. de Jesus 11. 27 Those who observed the trial were Cadets 1 CL
Balmeo, Dag-uman, Hasigan, Raguindin, Paulino, Arcangel, and Narciso; Cadets 2CL Jocson and
Saldua, Jr.; and Cadet 3CL Umaguing.28

The first formal hearing started late evening of January 20, 2014 and lasted until early morning the next
day. Cadet lCL Cudia was informed of the charge against him, as to which he pleaded "Not Guilty."
Among those who testified were Cadet 1 CL Cudia, Maj. Hindang, and Cadets 1 CL Arcangel and
Narciso. On the second night of the hearing held on January 21, 2014, Cadet 1 CL Cudia again appeared
and was called to the witness stand along with Cadets Brit and Barrawed. Dr. Costales also testified
under oath via phone on a loudspeaker. Deliberation among the HC voting members followed. After that,
the ballot sheets were distributed. The members cast their votes through secret balloting and submitted
their accomplished ballot sheets together with their written justification. The result was 8-1 in favor of a
guilty verdict. Cadet lCL Dalton John G. Lagura (Cadet lCL Lagura) was the lone dissenter. Allegedly,
upon the order ofHC Chairman Cadet 1 CL Mogol, the Presiding Officer and voting members went inside
a chamber adjoining the court room for further deliberation. After several minutes, they went out and the
Presiding Officer announced the 9-0 guilty verdict. Cadet 1 CL Cudia, who already served nine (9) touring
hours, was then informed of the unanimous votes finding him guilty of violating the Honor Code. He was
immediately placed in the PMA Holding Center until the resolution of his appeal.

On January 24, 2014, Cadet ICL Cudia filed a written appeal addressed to the HC Chairman, the full text
of which stated:

WRITTEN APPEAL

14 NOVEMBER 2013

This is when I was reported for "Late for two (2) minutes in Eng412 class", my explanation on this
delinquency report when I received it, is that "Our class was dismissed a (little) bit late and I came directly
from 4th period class ... etc". Knowing the fact that in my delinquency report, it is stated that ENG412
classes started 1500H and I am late for two minutes, it is logical enough for I (sic) to interpret it as "I came
1502H during that class". This is the explanation that came into my mind that time. (I just cannot recall the
exact words I used in explaining that delinquency report, but what I want to say is that I have no intention
to be late). In my statements, I convey my message as "since I was not the only one left in that class, and
the instructor is with us, I used the term "CLASS", I used the word "DISMISSED" because I was under
instruction (to wait for her to give the section grade) by the instructor, Ms. Costales. The other cadets (lCL
MIRANDA, lCL ARCANGEL) still have queries and business with her that made me decide to use the
word "CLASS", while the others who don't have queries and business with her (ex: lCL NARCISO and 1
CL DIAZ) were also around.

Note:

The four named cadets were also reported late.

Reference: Para 171. 0. (Leaving the Classroom Prior to Dismissal Time)(Sec XVII, CCAFPR s2008)

It is stated in this reference that "Cadets shall not linger in the place of instruction after the section has
been dismissed. EXCEPT when told or allowed to do so by the instructor or by any competent authority
for official purposes. "

The instruction by Ms. Costales was given to me before the two bells rang (indicating the end of class
hour, 1500H). I waited for her for about 45 seconds to 1 minute and 30 seconds, that made me to decide
to write "a little bit late" in my explanation. Truly, the class ENDED 1500H but due to official purpose
(instruction by Ms. Costales to wait) and the conflict in academic schedule (to which I am not in control of
the circumstances, 4th PD class 1330H-1500H and 5th PD class 1500H-1 600H), and since Ms.
Costales, my other classmates, and I were there, I used the word "CLASS".

19 December 2013

I was informed that my delinquency report was awarded, 11 Demerits and 13 Touring hours. Not because
I don't want to serve punishment, but because I know I did nothing wrong, I obeyed instruction, and
believing that my reason is justifiable and valid, that is why I approached our tactical officer, MAJ
HINDANG PAF, to clarify and ask why it was awarded that day.

In our conversation, he said that he had a phone call to my instructor and he even added that they have a
protocol to dismiss the class, 15 minutes or 10 minutes before 1500H. I explained:

Sir, I strongly believe that I am not in control of the circumstances, our 4th period class ended 1500H and
our 5th period class, which is ENG412, started 1500H also. Immediately after 4th period class, I went to
my next class without any intention of being late Sir.

These statements are supplementary to my explanation in my delinquency report, in here, I specified the
conflict in the schedule and again, I have no intention to be late. After explaining it further with these
statements, my tactical officer said that since I was reported in a written form, I should make an appeal in
a written form. Thinking that he already understood what I want to say, I immediately made an appeal that
day stating the words that I used in having conversation with him. 29

Attached to the written appeal was a Certification dated January 24, 2014, wherein Dr. Costales attested:

1. That Cadet MIRANDA, ARCANGEL, [and] NARCISO was (sic) with Cadet CUDIA in making
query about their latest grades in OR432 and/or results of UEl outside the ACADS office. The
following facts may explain their queries on 14 November 2013:

a. That I held my class in the PMAFI room instead of room 104.

b. That OR432 releases grades every Wednesday and cadets are informed during
Thursday, either in class or posted grades in the bulletin board (grades released was [sic
J based on the previous LEs: latest LE before UE was Decision Trees).
 c. That UE papers were already checked but not yet recorded due to (sic) other cadets
have not taken the UE. Cadets were allowed to verify scores but not to look at the
papers.

d. Last 23 January 2014, Captain Dulawan clarified if indeed Cadet NARCISO and
ARCANGEL verified grades. The two cadets said that they verified something with me
after the OR432 class and they were with Cadet CUD IA. That the statements of the
three (3) cadets are all the same and consistent, thus[,] I honor that as true.

2. As to the aspect of dismissing late, I could not really account for the specific time that I
dismissed the class. To this date, I [cannot] really recall an account that is more than two (2)
months earlier. According to my records, there was a lecture followed by an LE during (sic) on 14
November 2013. To determine the time of my dismissal, maybe it can be verified with the other
members of class I was handling on that said date.30

Respondents contend that the HC denied the appeal the same day, January · 24, as it found no reason to
conduct a re-trial based on the arguments and evidence presented. 31 Petitioners, however, claim that the
written appeal was not acted upon until the filing of the petition-in-intervention. 32

From January 25 to February 7, 2014, respondents allege that the Headquarters Tactics Group (HTG)
conducted an informal review to check the findings of the HC. During the course of the investigation, Prof.
Berong was said to have confirmed with the Officer-in-Charge of the HC that classes started as
scheduled (i.e., 3:05 p.m. or 1505H), and that Cadet lCL Barrawed, the acting class marcher of ENG412,
verified before the Commandant, Assistant Commandant, and STO that the class started not earlier than
scheduled.

Meantime, on February 4, 2014, the OIC of the HC forwarded the Formal Investigation Report to the Staff
Judge Advocate (SJA) for review. The next day, the SJA found the report to be legally in order.

On February 8, 2014, Colonel Rozzano D. Briguez (Col. Briguez), the Commandant of Cadets, affirmed
the HC findings and recommended to Vice Admiral Edgar Abogado, then PMA Superintendent, the
separation from the PMA of Cadet lCL Cudia for violation of the First Tenet of the Honor Code (Lying,
pursuant to Sec. VII.12.b of the CCAFPR S-2008). On the same date, Special Orders No. 26 was issued
by the PMA Headquarters placing Cadet 1 CL Cudia on indefinite leave of absence without pay and
allowances effective February 10, 2014 pending approval of his separation by the AFPGHQ, barring him
from future appointment and/or admission as cadet, and not permitting him to qualify for any entrance
requirements to the PMA. 33

Two days later, Vice Admiral Abogado approved the recommendation to dismiss Cadet 1 CL Cudia.

On February 13, 2014, Cadet lCL Cudia submitted a letter to the Office of the Commandant of Cadets
requesting for reinstatement by the PMA of his status as a cadet. 34

Four days passed, Annavee P. Cudia (Annavee ), the sister of Cadet 1 CL Cudia, posted his plight in her
Face book account. The day after, the Spouses Cudia gave a letter to Major General Oscar Lopez (Maj.
Gen. Lopez), the new PMA Superintendent, asking to recognize the 8-1 voting of the HC. 35 Copies of
which were furnished to the AFP Chief of Staff and other concerned military officials. Subsequently, Maj.
Gen. Lopez was directed to review Cadet lCL Cudia's case. The latter, in turn, referred the matter to the
Cadet Review and Appeals Board (CRAB).

On February 19, 2014, Cadet lCL Cudia made his personal appeal letter to Maj. Gen. Lopez. On even
date, the AFP Chief of Staff ordered a reinvestigation following the viral Facebook post of Annavee
demanding the intervention of the military leadership.
Petitioners claim that, on February 21, 2014, Special Order No. 1 was issued directing all PMA cadets to
ostracize Cadet 1 CL Cudia by not talking to him and by separating him from all activities/functions of the
cadets. It is said that any violation shall be a "Class 1" offense entailing 45 demerits, 90 hours touring,
and 90 hours confinement. Cadet 1 CL Cudia was not given a copy of the order and learned about it only
from the media.36 According to an alleged news report, PMA Spokesperson Major Agnes Lynette Flores
(Maj. Flores) confirmed the HC order to ostracize Cadet 1 CL Cudia. Among his offenses were: breach of
confidentiality by putting documents in the social media, violation of the PMA Honor Code, lack of
initiative to resign, and smearing the name of the PMA. 37

On February 24, 2014, Cadet 1CL Cudia requested the CRAB for additional time, until March 4, 2014, to
file an appeal on the ground that his intended witnesses are in on-the-job training ( OJT). 38 As additional
evidence to support his appeal, he also requested for copies of the Minutes of the HC proceedings,
relevant documents pertaining to the case, and video footages and recordings of the HC hearings.

The next day, Cadet 1 CL Cudia and his family engaged the services of the Public Attorney's Office
(PAO) in Baguio City.

The CRAB conducted a review of the case based on the following: (a) letter of appeal of the Spouses
Cudia dated February 18, 2014; (b) directive from the AFP-GHQ to reinvestigate the case; and ( c)
guidance from Maj. Gen. Lopez.

On February 26, 2014, Brigadier General Andre M. Costales, Jr. (Brig. Gen. Costales, Jr.), the CRAB
Chairman, informed Cadet lCL Cudia that, pending approval of the latter's request for extension, the
CRAB would continue to review the case and submit its recommendations based on whatever evidence
and testimonies received, and that it could not favorably consider his request for copies of the HC
minutes, relevant documents, and video footages and recordings of the HC hearings since it was neither
the appropriate nor the authorized body to take action thereon. 39 Subsequently, upon verbal advice,
Cadet 1 CL Cudia wrote a letter to Maj. Gen. Lopez reiterating his request. 40

Two days after, the Spouses Cudia filed a letter-complaint before the CHR-Cordillera Administrative
Region (CAR) Office against the HC members and Maj. Gracilla for alleged violation of the human rights
of Cadet lCL Cudia, particularly his rights to due process, education, and privacy of communication. 41

On March 4, 2014, Cadet 1 CL Cudia, through the PAO, moved for additional time, until March 19, 2014,
to file his appeal and submit evidence. PAO also wrote a letter to AFP Chief of Staff General Emmanuel
T. Bautista (Gen. Bautista) seeking for immediate directive to the PMA to expeditiously and favorably act
on Cadet 1CL Cudia's requests.42

Exactly a week prior to the commencement exercises of Siklab Diwa Class, the following events
transpired:

On March 10, 2014, Annavee sought the assistance of PAO Chief Public Attorney Persida V. Rueda-
Acosta.43 On the other hand, the CRAB submitted a report to the AFP-GHQ upholding the dismissal of
Cadet 1 CL Cudia.44

On March 11, 2014, PAO received a letter from Maj. Gen. Lopez stating the denial of Cadet 1CL Cudia's
requests for extension of time to file an Appeal Memorandum in view of the ample time already given, and
to be furnished with a copy of relevant documents because of confidentiality and presumption of regularity
of the HC proceedings.45 Cadet 1CL Cudia, through PAO, then filed an Appeal Memorandum 46 before the
CRAB.

On March 12, 2014, Spouses Cudia wrote a letter to President Benigno Simeon C. Aquino III (Pres.
Aquino), who is the Commander-in-Chief of the AFP, attaching thereto the Appeal Memorandum. 47 On the
same day, Special Orders No. 48 was issued by the PMA constituting a Fact-Finding Board/Investigation
Body composed of the CRAB members and PMA senior officers to conduct a deliberate investigation
pertaining to Cadet 1CL Cudia's Appeal Memorandum. 48 The focus of the inquiry was not just to find out
whether the appeal has merit or may be considered but also to investigate possible involvement of other
cadets and members of the command related to the incident and to establish specific violation of policy or
regulations that had been violated by other cadets and members of the HC. 49

On March 13, 2014, the Cudia family and the Chief Public Attorney had a dialogue with Maj. Gen. Lopez.
On March 14, 2014, the CHR-CAR came out with its preliminary findings, which recommended the
following:

a. For the PMA and the Honor Committee to respect and uphold the 8 Guilty - 1 Not guilty vote;

b. For the PMA and the Honor Committee to officially pronounce Cdt Cudia as Not Guilty of the
charge filed against him before the Honor Committee;

c. For the PMA to restore Cadet Cudia's rights and entitlements as a full-fledge graduating cadet
and allow him to graduate on Sunday, 16 March 2014;

d. For the PMA to fully cooperate with the CHR in the investigation of Cudia's Case. 50

On March 15, 2014, Cadet 1CL Cudia and his family had a meeting with Pres. Aquino and Department of
National Defense (DND) Secretary Voltaire T. Gazmin. The President recommended that they put in
writing their appeal, requests, and other concerns. According to respondents, the parties agreed that
Cadet 1 CL Cudia would not join the graduation but it was without prejudice to the result of the appeal,
which was elevated to the AFP Chief of Staff. The President then tasked Gen. Bautista to handle the
reinvestigation of the case, with Maj. Gen. Oscar Lopez supervising the group conducting the review.

Four days after Siklab Diwa Class' graduation day, petitioner Renato S. Cudia received a letter dated
March 11, 2014 from the Office of the AFP Adjutant General and signed by Brig. Gen. Ronald N. Albano
for the AFP Chief of Staff, affirming the CRAB' s denial of Cadet 1 CL Cudia' s appeal. It held:

After review, The Judge Advocate General, APP finds that the action of the PMA CRAB in denying the
appeal for reinvestigation is legally in order. There was enough evidence to sustain the finding of guilt and
the proprietary (sic) of the punishment imposed. Also, your son was afforded sufficient time to file his
appeal from the date he was informed of the final verdict on January 21, 2014, when the decision of the
Honor Committee was read to him in person, until the time the PMA CRAB conducted its review on the
case. Moreover, the continued stay of your son at the Academy was voluntary. As such, he remained
subject to the Academy's policy regarding visitation. Further, there was no violation of his right to due
process considering that the procedure undertaken by the Honor Committee and PMA CRAB was
consistent with existing policy. Thus, the previous finding and recommendation of the Honor Committee
finding your son, subject Cadet guilty of "Lying" and recommending his separation from the Academy is
sustained.

In view of the foregoing, this Headquarters resolved to deny your appeal for lack of merit. 51 Thereafter, the
Fact-Finding Board/Investigating Body issued its Final Investigation Report on March 23, 2014 denying
Cadet 1 CL Cudia's appeal.52 Subsequently, on April 28, 2014, the special investigation board tasked to
probe the case submitted its final report to the President. 53 Pursuant to the administrative appeals
process, the DND issued a Memorandum dated May 23, 2014, directing the Office of AFP Chief of Staff
to submit the complete records of the case for purposes of DND review and recommendation for
disposition by the President.54

Meanwhile, on May 22, 2014, the CHR-CAR issued its Resolution with respect to CHR-CAR Case No.
2014-0029, concluding and recommending as follows:
WHEREFORE, PREMISES CONSIDERED, the Commission on Human Rights-CAR Office finds
PROBABLE CAUSE FOR HUMAN RIGHTS VIOLATIONS against the officers and members of the PMA
Honor Committee and .. certain PMA officials, specifically for violations of the rights of CADET ALDRIN
JEFF P. CUDIA to dignity, due process, education, privacy/privacy of communication, and good life.

IN VIEW OF THE FOREGOING, the CHR-CAR Office RESOLVED to indorse to competent authorities for
their immediate appropriate action on the following recommendations:

1. The Philippine Military Academy must set aside the "9-Guilty, 0-Not Guilty" verdict against
Cadet Aldrin Jeff P. Cudia, for being null and void; to uphold and respect the "8-Guilty, 1-Not
Guilty" voting result and make an official pronouncement of NOT GUILTY in favor of Cadet Cudia;

2. The PMA, the AFP Chief of Staff, and the President in whose hands rest the ends of justice
and fate of Cadet Cudia, to:

2.1 officially proclaim Cadet Cudia a graduate and alumnus of the Philippine Military
Academy;

2.2 issue to Cadet Cudia the corresponding Diploma for the degree of Bachelors of
Science; and

2.3 Issue to Cadet Cudia the corresponding official transcript 'of his academic records for
his BS degree, without conditions therein as to his status as a PMA cadet.

3. The Public Attorneys' Office to provide legal services to Cadet Cudia in pursuing
administrative, criminal and civil suits against the officers and members of the Honor Committee
named hereunder, for violation of the Honor Code and System and the Procedure in Formal
Investigation, dishonesty, violation of the secrecy of the ballot, tampering the true result of the
voting, perjury, intentional omission in the Minutes of substantive part of the formal trial
proceedings which are prejudicial to the interest of justice and Cadet Cudia's fundamental rights
to dignity, non-discrimination and due process, which led to the infringement of his right to
education and even transgressing his right to a good life.

3.1 Cdt lCL MIKE ANTHONY MOGUL, now 2nd Lt. of the AFP

3.2 Cdt lCL RHONA K. SALVACION, now 2nd Lt. of the AFP

3.3 Cdt 2CL ARWI C. MARTINEZ

3.4 Cdt 2CL RENATO A. CARINO, JR.

3.5 Cdt 2CL NIKOANGELOC. TARAYAO

3.6 Cdt lCL JEANEL YN P. CABRIDO, now 2nd Lt. of the AFP

3.7 Cdt lCL KIM ADRIAN R. MARTAL, now 2nd Lt. of the AFP

3.8 Cdt lCL JAIRUS 0. FANTIN, now 2nd Lt. of the AFP

3.9 Cdt lCL BRYAN SONNY S. ARLEGUI, now 2nd Lt. of the AFP

3.10 Cdt lCL DALTON JOHN G. LAGURA, now 2nd Lt. of the AFP
 3.11 Cdt 1 CL BIANCHIHEIMER L. EDRA, now 2nd Lt. of the AFP

3.12 Cdt 4CL JENNIFER A. CUARTERON (recorder)

3.13 Cdt 3CL LEONCIO NICO A. DE JESUS II (record)

4. The Office of the AFP Chief of Staff and the PMA competent authorities should investigate and
file appropriate charges against Maj. VLADIMIR P. GRACILLA, for violation of the right to privacy
of Cadet Cudia and/or failure, as intelligence officer, to ensure the protection of the right to
privacy of Cudia who was then billeted at the PMA Holding Center;

5. The Office of the AFP Chief of Staff and PMA competent authorities should investigate Maj.
DENNIS ROMMEL HINDANG for his failure and ineptness to exercise his responsibility as a
competent Tactical Officer and a good father of his cadets, in this case, to Cadet Cudia; for failure
to respect exhaustion of administrative remedies;

6. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philppines,
the PMA Superintendent, to immediately cause the comprehensive review of all rules of
procedures, regulations, policies, including the so-called practices in the implementation of the
Honor Code; and, thereafter, adopt new policies, rules of procedures and relevant regulations
which are human-rights based and consistent with the Constitution and other applicable laws;

7. The Congress of the Philippines to consider the enactment of a law defining and penalizing
ostracism and discrimination, which is apparently being practiced in the PMA, as a criminal
offense in this jurisdiction;

8. His Excellency The President of the Philippines to certify as priority, the passage of an anti-
ostracism and/or anti-discrimination law; and

9. Finally, for the AFP Chief of Staff and the PMA authorities to ensure respect and protection of
the rights of those who testified for the cause of justice and truth as well as human rights of Cadet
Cudia.

RESOLVED FURTHER, to monitor the actions by the competent authorities on the foregoing CHR
recommendations.

Let copy of this resolution be served by personal service or by substituted service to the complainants
(the spouses Renato and Filipina Cudia; and Aldrin Jeff P. Cudia), and all the respondents. Also, to the
PMA Superintendent, the AFP Chief of Staff, the Secretary of National Defense, His Excellency The
President of the Philippines, The Public Attorneys' Office.

SO RESOLVED.55

On June 11, 2014, the Office of the President sustained the findings of the AFP Chief of Staff and the
CRAB. The letter, which was addressed to the Spouses Cudia and signed by Executive Secretary
Paquito N. Ochoa, Jr., stated in whole:

This refers to your letters to the President dated 12 March 2014 and 26 March 2014 appealing for a
reconsideration of the decision of the Philippine Military Academy (PMA) Honor Committee on the case of
your son, Cadet 1 CL Aldrin Jeff Cudia.

After carefully studying the records of the case of Cadet Cudia, the decision of the Chief of Staff of the
Armed Forces of the Philippines (AFP), and the Honor Code System of the AFP Cadet Corps, this Office
has found no substantial basis to disturb the findings of the AFP and the PMA Cadet Review Appeals
Board (CRAB). There is no competent evidence to support the claim that the decision of the Honor
Committee members was initially at 8 "Guilty" votes and 1 "Not Guilty" vote. The lone affidavit of an
officer, based on his purported conversation with one Honor Committee member, lacks personal
knowledge on the deliberations of the said Committee and is hearsay at best.

Similarly, the initial recommendations of the Commission on Human Rights cannot be adopted as basis
that Cadet Cudia's due process rights were violated. Apart from being explicitly preliminary in nature,
such recommendations are anchored on a finding that there was an 8-1 vote which, as discussed above,
is not supported by competent evidence.

In the evaluation of Cadet Cudia's case, this Office has been guided by the precept that military law is
regarded to be in a class of its own, "applicable only to military personnel because the military constitutes
an armed organization requiring a system of discipline separate from that of civilians" (Gonzales v.
Abaya, G.R. No. 164007, 10 August 2005 citing Calley v. Callaway, 519 F. 2d 184 [1975] and Orloff v.
Willoughby, 345 US 83 [1953]). Thus, this Office regarded the findings of the AFP Chief, particularly his
conclusion that there was nothing irregular in the proceedings that ensued, as carrying great weight.

Accordingly, please be informed that the President has sustained the findings of the AFP Chief and the
PMA CRAB.56

The Issues

To petitioners, the issues for resolution are:

I.

WHETHER THE PHILIPPINE MILITARY ACADEMY, THE HONOR COMMITTEE AND THE CADET
REVIEW AND APPEALS BOARD COMMITTED GRAVE ABUSE OF DISCRETION IN DISMISSING
CADET FIRST CLASS ALDRIN JEFF P. CUDIA FROM THE ACADEMY IN UTTER DISREGARD OF HIS
RIGHT TO DUE PROCESS CONSIDERING THAT:

A. Despite repeated requests for relevant documents regarding his case, Cadet First Class Aldrin
Jeff Cudia was deprived of his right to have access to evidence which would have proven his
defense, would have totally belied the charge against him, and more importantly, would have
shown the irregularity in the Honor Committee's hearing and rendition of decision

B. Cadet First Class Aldrin Jeff Cudia was vaguely informed of the decisions arrived at by the
Honor Committee, the Cadet Review and Appeals Board and the Philippine Military Academy

C. The Honor Committee, the Cadet Review and Appeals Board and the Philippine Military
Academy have afforded Cadet First Class Aldrin Jeff Cudia nothing but a sham trial

D. The Honor Committee, the Cadet Review and Appeals Board and the Philippine Military
Academy violated their own rules and principles as embodied in the Honor Code

E. The Honor Committee, the Cadet Review and Appeals Board and the Philippine Military
Academy, in deciding Cadet First Class Aldrin Jeff Cudia's case, grossly and in bad faith,
misapplied the Honor Code so as to defy the 1987 Constitution, notwithstanding the
unquestionable fact that the former should yield to the latter.

II
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE HONOR COMMITTEE AND THE CADET
REVIEW AND APPEALS BOARD COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT
CADET FIRST CLASS ALDRIN JEFF P. CUDIA LIED, THEREBY VIOLATING THE HONOR CODE

III

WHETHER THE RESULT OF THE FACT-FINDING INVESTIGATION INDEPENDENTLY CONDUCTED

BY THE COMMISSION ON HUMAN RIGHTS IS OF SUCH GREAT WEIGHT AND PERSUASIVE
NATURE THAT THIS HONORABLE COURT MAY HONOR, UPHOLD AND RESPECT 57

On the other hand, in support of their prayer to dismiss the petition, respondents presented the issues
below:

PROCEDURAL GROUNDS

I.

THE MANDAMUS PETITION PRAYING THAT CADET CUDIA BE INCLUDED IN THE LIST OF
GRADUATES OF SIKLAB DIWA CLASS OF 2014 AND BE ALLOWED TO TAKE PART IN THE
COMMENCEMENT EXERCISES HAS ALREADY BEEN RENDERED MOOT.

II.

THE ISSUES RAISED IN THE PETITIONS ARE ACTUALLY FACTUAL WHICH ARE BEYOND THE
SCOPE OF A PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS.

III.

MANDAMUS DOES NOT LIE TO COMPEL RESPONDENTS TO GRANT THE RELIEFS PRAYED FOR.
IV. IT IS PREMATURE TO INVOKE JUDICIAL REDRESS PENDING THE DECISION OF THE
PRESIDENT ON CADET CUDIA'S APPEAL.

V.

WITH UTMOST DUE RESPECT, THE HONORABLE COURT MUST EXERCISE CAREFUL RESTRAINT
AND REFRAIN FROM UNDULY OR PREMATURELY INTERFERING WITH LEGITIMATE MILITARY
MATTERS.

SUBSTANTIVE GROUNDS

VI.

CADET CUDIA HAS NECESSARILY AND VOLUNTARILY RELINQUISHED CERTAIN CIVIL LIBERTIES
BY VIRTUE OF HIS ENTRY INTO THE PMA.

VII.

THE PMA ENJOYS THE ACADEMIC FREEDOM WHICH AUTHORIZES IT TO IMPOSE DISCIPLINARY
MEASURES AND PUNISHMENT AS IT DEEMS FIT AND CONSISTENT WITH THE PECULIAR NEEDS
OF THE ACADEMY.

VIII.
CADET CUDIA WAS PROPERLY AFFORDED PROCEDURAL DUE PROCESS.

The PMA has regulatory authority to administratively terminate cadets despite the absence of statutory
authority.

Violation of the Honor Code warrants the administrative dismissal of a guilty cadet.

Cadet Cudia violated the first tenet of the Honor Code by providing untruthful statements in the
explanation for his tardiness.

The higher authorities of the PMA did not blindly adopt the findings of the Honor Committee.

The procedural safeguards in a student disciplinary case were properly accorded to Cadet Cudia.

The subtle evolution in the voting process of the Honor Committee, by incorporating executive
session/chambering, was adopted to further strengthen the voting procedure of the Honor Committee.
Cadet Lagura voluntarily changed his vote without any pressure from the other voting members of the
Honor Committee.

Ostracism is not a sanctioned practice of the PMA.

The findings of the Commission on Human Rights are not binding on the Honorable Court, and are, at
best, recommendatory.

Cadet Cudia was not effectively deprived of his future when he was dismissed from the PMA. 58

The Ruling of the Court

PROCEDURAL GROUNDS

Propriety of a petition for mandamus

Respondents argue that the mandamus aspect of the petition praying that Cadet 1 CL Cudia be included
in the list of graduating cadets and for him to take part in the commencement exercises was already
rendered moot and academic when the graduation ceremonies of the PMA Siklab Diwa Class took place
on March 16, 2014. Also, a petition for mandamus is improper since it does not lie to compel the
performance of a discretionary duty. Invoking Garcia v. The Faculty Admission Committee, Loyola School
of Theology,59 respondents assert that a mandamus petition could not be availed of to compel an
academic institution to allow a student to continue studying therein because it is merely a privilege and
not a right. In this case, there is a clear failure on petitioners' part to establish that the PMA has the,
ministerial duty to include Cadet 1 CL Cudia in the list, much less award him with academic honors and
commission him to the Philippine Navy. Similar to the case of University of San Agustin, Inc. v. Court of
Appeals,60 it is submitted that the PMA may rightfully exercise its discretionary power on who may be
admitted to study pursuant to its academic freedom.

In response, petitioners contend that while the plea to allow Cadet 1 CL Cudia to participate in the PMA
2014 commencement exercises could no longer be had, the Court may still grant the other reliefs prayed
for. They add that Garcia enunciated that a respondent can be ordered to act in a particular manner when
there is a violation of a constitutional right, and that the certiorari aspect of the petition must still be
considered because it is within the province of the Court to determine whether a branch of the
government or any of its officials has acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess thereof.
We agree that a petition for mandamus is improper.

Under Section 3, Rule 65 of the Rules of Civil Procedure, a petition for mandamus may be filed when any
tribunal, corporation, board, officer, or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station. It may also be filed when any
tribunal, corporation, board, officer, or person unlawfully excludes another from the use and enjoyment of
a right or office to which such other is entitled.

For mandamus to lie, the act sought to be enjoined must be a ministerial act or duty. An act is ministerial
if the act should be performed "[under] a given state of facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to or the exercise of [the tribunal or corporation's] own
judgment upon the propriety or impropriety of the act done." The tribunal, corporation, board, officer, or
person must have no choice but to perform the act specifically enjoined by law. This is opposed to a
discretionary act whereby the officer has the choice to decide how or when to perform the duty. 61

In this case, petitioners pray for, among others: Also, after due notice and hearing, it is prayed of the
Court to issue a Writ of Mandamus to:

1. direct the PMA to include Cadet Cudia in the list of graduates of Siklab Diwa Class of 2014 of
the PMA, including inclusion in the yearbook;

2. direct the PMA to allow Cadet Cudia to take part in the commencement exercises if he
completed all the requirements for his baccalaureate degree;

3. direct the PMA to award unto Cadet Cudia the academic honors he deserves, and the
commission as a new Philippine Navy ensign;

4. direct the Honor Committee to submit to the CRAB of the PMA all its records of the
proceedings taken against Cadet Cudia, including the video footage and audio recordings of the
deliberations and voting, for the purpose of allowing the CRAB to conduct intelligent review of the
case of Cadet Cudia;

5. direct the PMA's CRAB to conduct a review de nova of all the records without requiring Cadet
Cudia to submit new evidence if it was physically impossible to do so;

6. direct the PMA's CRAB to take into account the certification signed by Dr. Costales, the new
evidence consisting of the affidavit of a military officer declaring under oath that the cadet who
voted "not guilty" revealed to this officer that this cadet was coerced into changing his vote, and
other new evidence if there is any;

7. direct the PMA's CRAB to give Cadet Cudia the right to a counsel who is allowed to participate
actively in the proceedings as well as in the cross-examinations during the exercise of the right to
confront witnesses against him; and

8. direct the Honor Committee in case of remand of the case by the CRAB to allow Cadet Cudia a
representation of a counsel.62

Similarly, petitioner-intervenor seeks for the following reliefs:

A. xxx

B. a Writ of Mandamus be issued commanding:

 a.) The PMA, Honor Committee, and CRAB to respect and uphold the 8 Guilty -1 Not
Guilty vote;

b.) The PMA, Honor Committee, and CRAB to officially pronounce Cadet Cudia as Not
Guilty of the charge filed against him before the Honor Committee;

c.) The PMA to restore Cadet Cudia's rights and entitlements as a full-fledged graduating
cadet, including his diploma and awards.63

Anent the plea to direct the PMA to include Cadet 1 CL Cudia in the list of graduates of Siklab Diwa Class
of 2014 and to allow him to take part in the commencement exercises, the same was rendered moot and
academic when the graduation ceremonies pushed through on March 16, 2014 without including Cadet 1
CL Cudia in the roll of graduates.

With respect to the prayer directing the PMA to restore Cadet 1 CL Cudia's rights and entitlements as a
full-fledged graduating cadet, including his diploma, awards, and commission as a new Philippine Navy
ensign, the same cannot be granted in a petition for mandamus on the basis of academic freedom, which
We shall discuss in more detail below. Suffice it to say at this point that these matters are within the ambit
of or encompassed by the right of academic freedom; therefore, beyond the province of the Court to
decide.64 The powers to confer degrees at the PMA, grant awards, and commission officers in the military
service are discretionary acts on the part of the President as the AFP Commander-in-Chief. Borrowing the
words of Garcia:

There are standards that must be met. There are policies to be pursued. Discretion appears to be of the
essence. In terms of Hohfeld's terminology, what a student in the position of petitioner possesses is a
privilege rather than a right. She [in this case, Cadet 1 CL Cudia] cannot therefore satisfy the prime and
indispensable requisite of a mandamus proceeding.65

Certainly, mandamus is never issued in doubtful cases. It cannot be availed against an official or
government agency whose duty requires the exercise of discretion or judgment. 66 For a writ to issue,
petitioners should have a clear legal right to the thing demanded, and there should be an imperative duty
on the part of respondents to perform the act sought to be mandated. 67

The same reasons can be said as regards the other reliefs being sought by petitioners, which pertain to
the HC and the CRAB proceedings. In the absence of a clear and unmistakable provision of a law, a
mandamus petition does not lie to require anyone to a specific course of conduct or to control or review
the exercise of discretion; it will not issue to compel an official to do anything which is not his duty to do or
which is his duty not to do or give to the applicant anything to which he is not entitled by law. 68

The foregoing notwithstanding, the resolution of the case must proceed since, as argued by petitioners,
the Court is empowered to settle via petition for certiorari whether there is grave abuse of discretion on
the part of respondents in dismissing Cadet 1 CL Cudia from the PMA.

Factual nature of the issues

According to respondents, the petition raises issues that actually require the Court to make findings of fact
because it sets forth several factual disputes which include, among others: the tardiness of Cadet 1 CL
Cudia in , his ENG412 class and his explanation thereto, the circumstances that transpired in the
investigation of his Honor Code violation, the proceedings before the HC, and the allegation that Cadet 1
CL Lagura was forced to change his vote during the executive session/"chambering."

In opposition, petitioners claim that the instant controversy presents legal issues. Rather than determining
which between the two conflicting versions of the parties is true, the case allegedly centers on the
application, appreciation, and interpretation of a person's rights to due process, to education, and to
property; the interpretation of the PMA Honor Code and Honor System; and the conclusion on whether
Cadet 1 CL Cudia's explanation constitutes lying. Even if the instant case involves questions of fact,
petitioners still hold that the Court is empowered to settle mixed questions of fact and law. Petitioners are
correct.

There is a question of law when the issue does not call for an examination of the probative value of
evidence presented, the truth or falsehood of facts being admitted and the doubt concerns the correct
application of law and jurisprudence on the matter. On the other hand, there is a question of fact when the
doubt or controversy arises as to the truth or falsity of the alleged facts. When there is no dispute as to
fact, the question of whether or not the conclusion drawn therefrom is correct is a question of law. 69 The
petition does not exclusively present factual matters for the Court to decide. As pointed out, the all-
encompassing issue of more importance is the determination of whether a PMA cadet has rights to due
process, to education, and to property in the context of the Honor Code and the Honor System, and, if in
the affirmative, the extent or limit thereof. Notably, even respondents themselves raise substantive
grounds that We have to resolve. In support of their contention that the Court must exercise careful
restraint and should refrain from unduly or prematurely interfering in legitimate military matters, they argue
that Cadet 1 CL Cudia has necessarily and voluntarily relinquished certain civil liberties by virtue of his
entry into the PMA, and that the Academy enjoys academic freedom authorizing the imposition of
disciplinary measures and punishment as it deems fit and consistent with the peculiar needs of the PMA.
These issues, aside from being purely legal being purely legal questions, are of first impression; hence,
the Court must not hesitate to make a categorical ruling.

Exhaustion of administrative remedies

Respondents assert that the Court must decline jurisdiction over the petition pending President Aquino’s
resolution of Cadet 1 CL Cudia' appeal. They say that there is an obvious non-exhaustion of the full
administrative process. While Cadet 1 CL Cudia underwent the review procedures of his guilty verdict at
the Academy level - the determination by the SJA of whether the HC acted according to the established
procedures of the Honor System, the assessment by the Commandant of Cadets of the procedural and
legal correctness of the guilty verdict, the evaluation of the PMA Superintendent to warrant the
administrative separation of the guilty cadet, and the appellate review proceedings before the CRAB - he
still appealed to the President, who has the utmost latitude in making decisions affecting the military. It is
contended that the President's power over the persons and actions of the members of the armed forces is
recognized in B/Gen. (Ret.) Gudani v. Lt./Gen. Senga 70 and in Section 3171 of Commonwealth Act (CA.)
No. 1 (also known as "The National Defense Act''). As such, the President could still overturn the decision
of the PMA. In respondents' view, the filing of this petition while the case is pending resolution of the
President is an irresponsible defiance, if not a personal affront. For them, comity dictates that courts of
justice should shy away from a dispute until the system of administrative redress has been completed.

From the unfolding of events, petitioners, however, consider that President Aquino effectively denied the
appeal of Cadet 1 CL Cudia. They claim that his family exerted insurmountable efforts to seek
reconsideration of the HC recommendation from the APP officials and the President, but was in vain. The
circumstances prior to, during, and after the PMA 2014 graduation rites, which was attended by President
Aquino after he talked to Cadet lCL Cudia's family the night before, foreclose the possibility that the
challenged findings would still be overturned. In any case, petitioners insist that the· rule on exhaustion of
administrative remedies is not absolute based on the Corsiga v. Defensor 72 and Verceles v. BLR-
DOLE73 rulings.

We rule for petitioners.

In general, no one is entitled to judicial relief for a supposed or threatened injury until the prescribed
administrative remedy has been exhausted. The rationale behind the doctrine of exhaustion of
administrative remedies is that "courts, for reasons of law, comity, and convenience, should not entertain
suits unless the available administrative remedies have first been resorted to and the proper authorities,
who are competent to act upon the matter complained of, have been given the appropriate opportunity to
act and correct their alleged errors, if any, committed in the administrative forum." 74 In the U.S. case of
Ringgold v. United States,75 which was cited by respondents, it was specifically held that in a typical case
involving a decision by military authorities, the plaintiff must exhaust his remedies within the military
before appealing to the court, the doctrine being designed both to preserve the balance between military
and civilian authorities and to conserve judicial resources.

Nonetheless, there are exceptions to the rule. In this jurisdiction, a party may directly resort to judicial
remedies if any of the following is present:

1. when there is a violation of due process;

2. when the issue involved is purely a legal question;

3. when the administrative action is patently illegal amounting to lack or excess of jurisdiction;

4. when there is estoppel on the part of the administrative agency concerned;

5. when there is irreparable injury;

6. when the respondent is a department secretary whose acts as an alter ego of the President
bear the implied and assumed approval of the latter;

7. when to require exhaustion of administrative remedies would be unreasonable;

8. when it would amount to a nullification of a claim;

9. when the subject matter is a private land in land case proceedings;

10. when the rule does not provide a plain, speedy and adequate remedy; and

11. when there are circumstances indicating the urgency of judicial intervention. 76

Petitioners essentially raise the lack of due process in the dismissal of Cadet 1 CL Cudia from the PMA.
Thus, it may be a ground to give due course to the petition despite the non-exhaustion of administrative
remedies. Yet more significant is the fact that during the pendency of this case, particularly on June 11,
2014, the Office of the President finally issued its ruling, which sustained the findings of the AFP Chief
and the CRAB. Hence, the occurrence of this supervening event bars any objection to the petition based
on failure to exhaust administrative remedies.

Court's interference within military affairs

Respondents cite the U.S. cases of Bois v. Marsh 77 and Schlesinger v. Councilman78 to support their
contention that judicial intervention would pose substantial threat to military discipline and that there
should be a deferential review of military statutes and regulations since political branches have particular
expertise and competence in assessing military needs. Likewise, in Orloff v. Willoughby 79 and Parker v.
Levy,80 it was allegedly opined by the U.S. Supreme Court that the military constitutes a specialized
community governed by a separate discipline from that of the civilian. According to respondents, the U.S.
courts' respect to the military recognizes that constitutional rights may apply differently in the military
context than in civilian society as a whole. Such military deference is exercised either by refusing to apply
due process and equal protection doctrines in military cases or applying them but with leniency.
In respondents' view, although Philippine courts have the power of judicial review in cases attended with
grave abuse of discretion amounting to lack or excess of jurisdiction, policy considerations call for the
widest latitude of deference to military affairs. Such respect is exercised by the court where the issues to
be resolved entail a substantial consideration of legitimate governmental interest. They suppose that
allowing Cadet 1 CL Cudia's case to prosper will set an institutionally dangerous precedent, opening a
Pandora's box of other challenges against the specialized system of discipline of the PMA. They state
that with the PMA's mandate to train cadets for permanent commission in the AFP, its disciplinary rules
and procedure necessarily must impose h different standard of conduct compared with civilian institutions.

Petitioners, on the other hand, consider that this Court is part of the State's check-and-balance
machinery, specifically mandated by Article VIII of the 1987 Constitution to ensure that no branch of the
government or any of its officials acts without or in excess of jurisdiction or with grave abuse of, discretion
amounting to lack or excess of jurisdiction. They assert that judicial non-interference in military affairs is
not deemed as absolute even in the U.S. They cite Schlesinger and Parker, which were invoked by
respondents, as well as Burns v. Wilson81 and Harmon v. Brucker,82 wherein the U.S. Supreme Court
reviewed the proceedings of military tribunals on account of issues posed concerning due process and
violations of constitutional rights. Also, in Magno v. De Villa 83 decided by this Court, petitioners note that
We, in fact, exercised the judicial power to determine whether the APP and the members of the court
martial acted with grave abuse o.f discretion in their military investigation.

Petitioners' contentions are tenable.

Admittedly, the Constitution entrusts the political branches of the government, not the courts, with
superintendence and control over the military because the courts generally lack the competence and
expertise necessary to evaluate military decisions and they are ill-equipped to determine the impact upon
discipline that any particular intrusion upon military authority might have. 84 Nevertheless, for the sake of
brevity, We rule that the facts as well as the legal issues in the U.S. cases cited by respondents are not
on all fours with the case of Cadet 1 CL Cudia. Instead, what applies is the 1975 U.S. case of Andrews v.
Knowlton,85 which similarly involved cadets who were separated from the United States Military Academy
due to Honor Code violations. Following Wasson v. Trowbridge 86 and Hagopian v. Knowlton,87 Andrews
re-affirmed the power of the district courts to review procedures used at the service academies in the
separation or dismissal of cadets and midshipmen. While it recognized the "constitutional permissibility of
the military to set and enforce uncommonly high standards of conduct and ethics," it said that the courts
"have expanded at an accelerated pace the scope of judicial access for review of military determinations."
Later, in Kolesa v. Lehman,88 it was opined that it has been well settled that federal courts have
jurisdiction "where there is a substantial claim that prescribed military procedures violates one's
constitutional rights." By 1983, the U.S. Congress eventually made major revisions to the Uniform Code of
Military Justice (UCMJ) by expressly providing, among others; for a direct review by the U.S. Supreme
Court of decisions by the military's highest appellate authority. 89

Even without referring to U.S. cases, the position of petitioners is still formidable. In this jurisdiction,
Section 1 Article VIII of the 1987 Constitution expanded the scope of judicial power by mandating that the
duty of the courts of justice includes not only "to settle actual controversies involving rights which are
legally demandable and enforceable" but also "to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government" even if the latter does not exercise judicial, quasi-judicial or ministerial functions. 90 Grave
abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction or where the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, which must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in contemplation of law. 91

The proceedings of the Cadet Honor Committee can, for purposes of the Due Process Clause, be
considered a governmental activity. As ruled in Andrews:
The relationship between the Cadet Honor Committee and the separation process at the Academy has
been sufficiently formalized, and is sufficiently interdependent, so as to bring that committee's activities
within the definition of governmental activity for the purposes of our review. While the Academy has long
had the informal practice of referring all alleged violations to the Cadet Honor Committee, the relationship
between that committee and the separation process has to a degree been formalized. x x x

Regardless of whether the relationship be deemed formal or informal, the Honor Committee under its own
procedures provides that a single "not guilty" vote by a member ends the matter, while a "guilty" finding
confronts a cadet with the hard choice of either resigning or electing to go before a Board of Officers. An
adverse finding there results not only in formal separation from the Academy but also in a damaging
record that will follow the cadet through life. Accordingly, we conclude that the Cadet Honor Committee,
acting not unlike a grand jury, is clearly part of the process whereby a cadet can ultimately be adjudged to
have violated the Cadet Honor Code and be separated from the Academy. Therefore, the effect of the
committee's procedures and determinations on the separation process is sufficiently intertwined with the
formal governmental activity which may follow as to bring it properly under judicial review 92

No one is above the law, including the military. In fact, the present Constitution declares it as a matter of
principle that civilian authority is, at all times, supreme over the military. 93 Consistent with the republican
system of checks and balances, the Court has been entrusted, expressly or by necessary implication,
with both the duty and the obligation of determining, in appropriate cases, the validity of any assailed
legislative or executive action.94

SUBSTANTIVE GROUNDS

Cadet's relinquishment of certain civil liberties

Respondents assert that the standard of rights applicable to a cadet is not the same as that of a civilian
because the former' s rights have already been recalibrated to best serve the military purpose and
necessity. They claim that both Gudani and Lt. Col. Kapunan, Jr. v. Gen. De Villa 95 recognized that, to a
certain degree, individual rights of persons in the military service may be curtailed by the rules of military
discipline in order to ensure its effectiveness in fulfilling the duties required to be discharged under the
law. Respondents remind that, as a military student aspiring to a commissioned post in the military
service, Cadet 1 CL Cudia voluntarily gave up certain civil and political rights which the rest of the civilian
population enjoys. The deliberate surrender of certain freedoms on his part is embodied in the cadets'
Honor Code Handbook. It is noted that at the beginning of their academic life in the PMA, Cadet 1 CL
Cudia, along with the rest of Cadet Corps, took an oath and undertaking to stand by the Honor Code and
the Honor System.

To say that a PMA cadet surrenders his fundamental human rights, including the right to due process, is,
for petitioners, contrary to the provisions of Section 3, Article II of the 1987 Constitution, 96 Executive Order
(E.O.) No. 17897 (as amended by E.O. No. 100598), AFP Code of Ethics, Oath of Cadet Corps to the
Honor Code and the Honor System, military professionalism, and, in general, military culture. They
maintain that the HC, the CRAB, and the PMA, grossly and in bad faith misapplied the Honor Code and
the Honor System in deciding Cadet lCL Cudia's case considering that these should not be implemented
at the expense of human rights, due process, and fair play. Further, under the doctrine of constitutional
supremacy, they can never overpower or defy the 1987 Constitution since the former should yield to the
latter. Petitioners stress that the statement that "a cadet can be compelled to surrender some civil rights
and liberties in order for the Code and System to be implemented" simply pertains to what cadets have to
sacrifice in order to prove that they are men or women of integrity and honor, such as the right to entertain
vices and the right to freely choose what they want to say or do. In the context of disciplinary
investigation, it does not contemplate a surrender of the right to due process but, at most, refers to the
cadets' rights to privacy and to remain silent.

We concur with the stand of petitioners.

Of course, a student at a military academy must be prepared to subordinate his private interests for the
proper functioning of the educational institution he attends to, one that is with a greater degree than a
student at a civilian public school.99 In fact, the Honor Code and Honor System Handbook of the PMA
expresses that, "[as] a training environment, the Cadet Corps is a society which has its own norms. Each
member binds himself to what is good for him, his subordinates, and his peers. To be part of the Cadet
Corps requires the surrender of some basic rights and liberties for the good of the group." 100

It is clear, however, from the teachings of Wasson and Hagopian, which were adopted by Andrews, that a
cadet facing dismissal from the military academy for misconduct has constitutionally protected private
interests (life, liberty, or property); hence, disciplinary proceedings conducted within the bounds of
procedural due process is a must.101 For that reason, the PMA is not immune from the strictures of due
process. Where a person's good name, reputation, honor, or integrity is at stake because of what the
government is doing to him, the minimal requirements of the due process clause must be
satisfied.102 Likewise, the cadet faces far more severe sanctions of being expelled from a course of
college instruction which he or she has pursued with a view to becoming a career officer and of probably

being forever denied that career.103

The cases of Gudani and Kapunan, Jr. are inapplicable as they do not specifically pertain to dismissal
proceedings of a cadet in a military academy due to honor violation. In Gudani, the Court denied the
petition that sought to annul the directive from then President Gloria Macapagal-Arroyo, which' enjoined
petitioners from testifying before the Congress without her consent. We ruled that petitioners may be
subjected to military discipline for their defiance of a direct order of the AFP Chief of Staff. On the other
hand, in Kapunan, Jr., this Court upheld the restriction imposed on petitioner since the conditions for his
"house arrest" (particularly, that he may not issue any press statements or give any press conference
during the period of his detention) are justified by the requirements of military discipline. In these two
cases, the constitutional rights to information, transparency in matters of public concern, and to free
speech - not to due process clause - were restricted to better serve the greater military purpose.
Academic freedom of the PMA

Petitioners posit that there is no law providing that a guilty finding by the HC may be used by the PMA to
dismiss or recommend the dismissal of a cadet from the PMA. They argue that Honor Code violation is
not among those listed as justifications for the attrition of cadets considering that the Honor Code and the
Honor System do not state that a guilty cadet is automatically terminated or dismissed from service. To
them, the Honor Code and Honor System are "gentleman's agreement" that cannot take precedence over
public interest - in the defense of the nation and in view of the taxpayer's money spent for each cadet.
Petitioners contend that, based on the Civil Code, all written or verbal agreements are null and void if they
violate the law, good morals, good customs, public policy, and public safety.

In opposition, respondents claim that the PMA may impose disciplinary measures and punishment as it
deems fit and consistent with the peculiar needs of the Academy. Even without express provision of a
law, the PMA has regulatory authority to administratively dismiss erring cadets since it is deemed
reasonably written into C.A. No. 1. Moreover, although said law grants to the President the authority of
terminating a cadet's appointment, such power may be delegated to the PMA Superintendent, who may
exercise direct supervision and control over the cadets.

Respondents likewise contend that, as an academic institution, the PMA has the inherent right to
promulgate reasonable norms, rules and regulations that it may deem necessary for the maintenance of
school discipline, which is specifically mandated by Section 3 (2), 104 Article XIV of the 1987 Constitution.
As the premiere military educational institution of the AFP in accordance with Section 30, 105 Article III of
C.A. No. 1 and Sections 58 and 59,106 Chapter 9, Subtitle II, Title VIII, Book IV of E.O. No. 292
("Administrative Code of 1987"), the PMA is an institution that enjoys academic freedom guaranteed by
Section 5 (2),107 Article XIV of the 1987 Constitution. In Miriam College Foundation, Inc. v. Court of
Appeals,108 it was held that concomitant with such freedom is the right and duty to instill and impose
discipline upon its students. Also, consistent with lsabelo, Jr. v. Perpetual Help College of Rizal,
Inc.109 and Ateneo de Manila University v. Capulong, 110 the PMA has the freedom on who to admit (and,
conversely, to expel) given the high degree of discipline and honor expected from its students who are to
form part of the AFP.

For respondents, Cadet 1 CL Cudia cannot, therefore, belatedly assail the Honor Code as basis of the
HC' s decision to recommend his dismissal from the PMA. When he enlisted for enrolment and studied in
the PMA for four years, he knew or should have been fully aware of the standards of discipline imposed
on all cadets and the corresponding penalty for failing to abide by these standards.

In their Reply, petitioners counter that, as shown in lsabelo, Jr. and Ateneo, academic freedom is not
absolute and cannot be exercised in blatant disregard of the right to due process and the 1987
Constitution. Although schools have the prerogative to choose what to teach, how to teach, and who to
teach, the same does not go so far as to deprive a student of the right to graduate when there is clear
evidence that he is entitled to the same since, in such a case, the right to graduate becomes a vested
right which takes precedence over the limited and restricted right of the educational institution.

While both parties have valid points to consider, the arguments of respondents are more in line with the
facts of this case. We have ruled that the school-student relationship is contractual in nature. Once
admitted, a student's enrolment is not only semestral in duration but for the entire period he or she is
expected to complete it.111 An institution of learning has an obligation to afford its students a fair
opportunity to complete the course they seek to pursue. 112 Such contract is imbued with public interest
because of the high priority given by the Constitution to education and the grant to the State of
supervisory and regulatory powers over a educational institutions. 113

The school-student relationship has also been held as reciprocal. "[It] has consequences appurtenant to
and inherent in all contracts of such kind -it gives rise to bilateral or reciprocal rights and obligations. The
school undertakes to provide students with education sufficient to enable them to pursue higher education
or a profession. On the other hand, the students agree to abide by the academic requirements of the
school and to observe its rules and regulations."114

Academic freedom or, to be precise, the institutional autonomy of universities and institutions of higher
learning,115 has been enshrined in our Constitutions of 1935, 1973, and 1987. 116 In Garcia, this Court
espoused the concurring opinion of U.S. Supreme Court Justice Felix Frankfurter in Sweezy v. New
Hampshire,117 which enumerated "the four essential freedoms" of a university: To determine for itself on
academic grounds (1) who may teach, (2) what may be taught, (3) how it shall be taught, and (4) who
may be admitted to study.118 An educational institution has the power to adopt and enforce such rules as
may be deemed expedient for its government, this being incident to the very object of incorporation, and
indispensable to the successful management of the college. 119 It can decide for itself its aims and
objectives and how best to attain them, free from outside coercion or interference except when there is an
overriding public welfare which would call for some restraint. 120 Indeed, "academic freedom has never
been meant to be an unabridged license. It is a privilege that assumes a correlative duty to exercise it
responsibly. An equally telling precept is a long recognized mandate, so well expressed in Article 19 of
the Civil Code, that every 'person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty and good faith."' 121

The schools' power to instill discipline in their students is subsumed in their academic freedom and that
"the establishment of rules governing university-student relations, particularly those pertaining to student
discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but
to its very survival."122 As a Bohemian proverb puts it: "A school without discipline is like a mill without
water." Insofar as the water turns the mill, so does the school's disciplinary power assure its right to
survive and continue operating.123 In this regard, the Court has always recognized the right of schools to
impose disciplinary sanctions, which includes the power to dismiss or expel, on students who violate
disciplinary rules.124 In Miriam College Foundation, Inc. v. Court of Appeals, 125 this Court elucidated:
The right of the school to discipline its students is at once apparent in the third freedom, i.e., "how it shall
be taught." A school certainly cannot function in an atmosphere of anarchy.

Thus, there can be no doubt that the establishment of an educational institution requires rules and
regulations necessary for the maintenance of an orderly educational program and the creation of an
educational environment conducive to learning. Such rules and regulations are equally necessary for the
protection of the students, faculty, and property.

Moreover, the school has an interest in teaching the student discipline, a necessary, if not indispensable,
value in any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to
discipline the student likewise finds basis in the freedom "what to teach." Incidentally, the school not only
has the right but the duty to develop discipline in its students. The Constitution no less imposes such duty.

[All educational institutions] shall inculcate patriotism and nationalism, foster love of humanity, respect for
human rights, appreciation of the role of national heroes in the historical development of the country,
teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character
and personal discipline, encourage critical and creative thinking, broaden scientific and technological
knowledge, and promote vocational efficiency.

In Angeles vs. Sison, we also said that discipline was a means for the school to carry out its responsibility
to help its students "grow and develop into mature, responsible, effective and worthy citizens of the
community."

Finally, nowhere in the above formulation is the right to discipline more evident than in "who may be
admitted to study." If a school has the freedom to determine whom to admit, logic dictates that it also has
the right to determine whom to exclude or expel, as well as upon whom to impose lesser sanctions such
as suspension and the withholding of graduation privileges. 126

The power of the school to impose disciplinary measures extends even after graduation for any act done
by the student prior thereto. In University of the Phils. Board of Regents v. Court of Appeals, 127 We upheld
the university's withdrawal of a doctorate degree already conferred on a student who was found to have
committed intellectual dishonesty in her dissertation. Thus:

Art. XIV, §5 (2) of the Constitution provides that "[a]cademic freedom shall be enjoyed in all institutions of
higher learning." This is nothing new. The 1935 Constitution and the 1973 Constitution likewise provided
for the academic freedom or, more precisely, for the institutional autonomy of universities and institutions
of higher learning. As pointed out by this Court in Garcia v. Faculty Admission Committee, Loyola School
of Theology, it is a freedom granted to "institutions of higher learning" which is thus given "a wide sphere
of authority certainly extending to the choice of students." If such institution of higher learning can decide
who can and who cannot study in it, it certainly can also determine on whom it can confer the honor and
distinction of being its graduates.

Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university
has the right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a
university does not terminate upon the "graduation" of a student, .as the Court of Appeals held. For it is
precisely the "graduation" of such a student that is in question. It is noteworthy that the investigation of
private respondent's case began before her graduation. If she was able to join the graduation ceremonies
on April 24, 1993, it was because of too many investigations conducted before the Board of Regents
finally decided she should not have been allowed to graduate.

Wide indeed is the sphere of autonomy granted to institutions of higher learning, for the constitutional
grant of academic freedom, to quote again from Garcia v. Faculty Admission Committee, Loyola School of
Theology, "is not to be construed in a niggardly manner or in a grudging fashion."
Under the U.P. Charter, the Board of Regents is the highest governing body of the University of the
Philippines. It has the power to confer degrees upon the recommendation of the University Council. It
follows that if the conferment of a degree is founded on error or fraud, the Board of Regents is also
empowered, subject to the observance of due process, to withdraw what it has granted without violating a
student's rights. An institution of higher learning cannot be powerless if it discovers that an academic
degree it has conferred is not rightfully deserved. Nothing can be more objectionable than bestowing a
university's highest academic degree upon an individual who has obtained the same through fraud or
deceit. The pursuit of academic excellence is the university's concern. It should be empowered, as an act
of self-defense, to take measures to protect itself from serious threats to its integrity.

While it is true that the students are entitled to the right to pursue their education, the USC as an
educational institution is also entitled to pursue its academic freedom and in the process has the
concomitant right to see to it that this freedom is not jeopardized. 128

It must be borne in mind that schools are established, not merely to develop the intellect and skills of the
studentry, but to inculcate lofty values, ideals and attitudes; nay, the development, or flowering if you will,
of the total man.129 Essentially, education must ultimately be religious, i.e., one which inculcates duty and
reverence.130 Under the rubric of "right to education," students have a concomitant duty to learn under the
rules laid down by the school.131 Every citizen has a right to select a profession or, course of study,
subject to fair, reasonable, and equitable admission and academic requirements. 132 The PMA is not
different. As the primary training and educational institution of the AFP, it certainly has the right to invoke
academic freedom in the enforcement of its internal rules and regulations, which are the Honor Code and
the Honor System in particular.

The Honor Code is a set of basic and fundamental ethical and moral principle. It is the minimum standard
for cadet behavior and serves as the guiding spirit behind each cadet's action. It is the cadet's
responsibility to maintain the highest standard of honor. Throughout a cadet's stay in the PMA, he or she
is absolutely bound thereto. It binds as well the members of the Cadet Corps from its alumni or the
member of the so-called "Long Gray Line."

Likewise, the Honor Code constitutes the foundation for the cadets' character development. It defines the
desirable values they must possess to remain part of the Corps; it develops the atmosphere of trust so
essential in a military organization; and it makes them professional military soldiers. 133 As it is for
character building, it should not only be kept within the society of cadets. It is best adopted by the Cadet
Corps with the end view of applying it outside as an officer of the AFP and as a product of the PMA. 134

The Honor Code and System could be justified as the primary means of achieving the cadets' character
development and as ways by which the Academy has chosen to identify those who are deficient in
conduct.135 Upon the Code rests the ethical standards of the Cadet Corps and it is also an institutional
goal, ensuring that graduates have strong character, unimpeachable integrity, and moral standards of the
highest order.136 To emphasize, the Academy's disciplinary system as a whole is characterized as
"correctional and educational in nature rather than being legalistic and punitive." Its purpose is to teach
the cadets "to be prepared to accept full responsibility for all that they do or fail to do and to place loyalty
to the service above self-interest or loyalty to friends or associates. " 137 Procedural safeguards in a
student disciplinary case

Respondents stress that Guzman v. National University 138 is more appropriate in determining the
minimum standards for the imposition of disciplinary sanctions in academic institutions. Similarly, with the
guideposts set in Andrews, they believe that Cadet 1 CL Cudia was accorded due process.

On the other hand, petitioners argue that the HC, the CRAB and the PMA fell short in observing the
important safeguards laid down in Ang Tibay v. CIR139 and Non v. Judge Dames II,140 which set the
minimum standards to satisfy the demands of procedural due process in the imposition of disciplinary
sanctions. For them, Guzman did not entirely do away with the due process requirements outlined in Ang
Tibay as the Court merely stated that the minimum requirements in the Guzman case are more apropos.

Respondents rightly argued.

Ateneo de Manila University v. Capulong141 already settled the issue as it held that although both Ang
Tibay and Guzman essentially deal with the requirements of due process, the latter case is more apropos
since it specifically deals with the minimum standards to be satisfied in the imposition of disciplinary
sanctions in academic institutions. That Guzman is the authority on the procedural rights of students in
disciplinary cases was reaffirmed by the Court in the fairly recent case of Go v. Colegio De San Juan De
Letran.142

In Guzman, the Court held that there are minimum standards which must be met to satisfy the demands
of procedural due process, to wit:

(1) the students must be informed in writing of the nature and cause of any accusation against them; (2)
they shall have the right to answer the charges against them, with the assistance of counsel, if desired;
(3) they shall be informed of the evidence against them; ( 4) they shall have the right to adduce evidence
in their own behalf; and (5) the evidence must be duly considered by the investigating committee or
official designated by the school authorities to hear and decide the case. 143

We have been consistent in reminding that due process in disciplinary cases involving students does not
entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of
justice;144 that the proceedings may be summary; 145 that cross-examination is not an essential part of the
investigation or hearing;146 and that the required proof in a student disciplinary action, which is an
administrative case, is neither proof beyond reasonable doubt nor preponderance of evidence but only
substantial evidence or "such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."147

What is crucial is that official action must meet minimum standards of fairness to the individual, which
generally encompass the right of adequate notice and a meaningful opportunity to be heard. 148 As held in
De La Salle University, Inc. v. Court of Appeals:149

Notice and hearing is the bulwark of administrative due process, the right to which is among the primary
rights that must be respected even in administrative proceedings. The essence of due process is simply
an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's
side or an opportunity to seek reconsideration of the action or ruling complained of. So long as the party is
given the opportunity to advocate her cause or defend her interest in due course, it cannot be said that
there was denial of due process.

A formal trial-type hearing is not, at all times and in all instances, essential to due process - it is enough
that the parties are given a fair and reasonable opportunity to explain their respective sides of the
controversy and to present supporting evidence on which a fair decision can be based. "To be heard"
does not only mean presentation of testimonial evidence in court - one may also be heard through
pleadings and where the opportunity to be heard through pleadings is accorded, there is no denial of due
process.150

The PMA Honor Code explicitly recognizes that an administrative proceeding conducted to investigate a
cadet's honor violation need not be clothed with the attributes of a judicial proceeding. It articulates that –
The Spirit of the Honor Code guides the Corps in identifying and assessing misconduct. While cadets are
interested in legal precedents in cases involving Honor violations, those who hold the Spirit of the Honor
Code dare not look into these precedents for loopholes to justify questionable acts and they are not to
interpret the system to their own advantage.
The Spirit of the Honor Code is a way for the cadets to internalize Honor in a substantive way. Technical
and procedural misgivings of the legal systems may avert the true essence of imparting the Spirit of the
Code for the reason that it can be used to make unlawful attempt to get into the truth of matters especially
when a cadet can be compelled to surrender some civil rights and liberties in order for the Code and
System to be implemented. By virtue of being a cadet, a member of the CCAFP becomes a subject of the
Honor Code and System. Cadet's actions are bound by the existing norms that are logically applied
through the Code and System in order to realize the Academy's mission to produce leaders of character -
men of integrity and honor.151

One of the fundamental principles of the Honor System also states:

2. The Honor System correlates with legal procedures of the state's Justice System but it does not
demean its Spirit by reducing the Code to a systematic list of externally observed rules. Where
misinterpretations and loopholes arise through legalism and its technicalities, the objective of building the
character of the cadets becomes futile. While, generally, Public Law penalizes only the faulty acts, the
Honor System tries to examine both the action and the intention. 152

Like in other institutions of higher learning, there is aversion towards undue judicialization of an
administrative hearing in the military academy. It has been said that the mission of the military is unique in
the sense that its primary business is to fight or be ready to fight wars should the occasion arise, and that
over-proceduralizing military determinations necessarily gives soldiers less time to accomplish this
task.153 Extensive cadet investigations and complex due process hearing could sacrifice simplicity,
practicality, and timeliness. Investigations that last for several days or weeks, sessions that become
increasingly involved with legal and procedural' points, and legal motions and evidentiary objections that
are irrelevant and inconsequential tend to disrupt, delay, and confuse the dismissal proceedings and
make them unmanageable. Excessive delays cannot be tolerated since it is unfair to the accused, to his
or her fellow cadets, to the Academy, and, generally, to the Armed Forces. A good balance should,
therefore, be struck to achieve fairness, thoroughness, and efficiency. 154 Considering that the case of
Cadet 1 CL Cudia is one of first impression in the sense that this Court has not previously dealt with the
particular issue of a dismissed cadet's right to due process, it is necessary for Us to refer to U.S.
jurisprudence for some guidance. Notably, our armed forces have been patterned after the U.S. Army and
the U.S. military code produced a salutary effect in the military justice system of the Philippines. 155 Hence,
pertinent case laws interpreting the U.S. military code and practices have persuasive, if not the same,
effect in this jurisdiction.

We begin by stating that U.S. courts have uniformly viewed that "due process" is a flexible concept,
requiring consideration in each case of a variety of circumstances and calling for such procedural
protections as the particular situation demands.156 Hagopian opined:

In approaching the question of what process is due before governmental action adversely affecting
private interests may properly be taken, it must be recognized that due process is not a rigid formula or
simple rule of thumb to be applied undeviatingly to any given set of facts. On the contrary, it is a flexible
concept which depends upon the balancing of various factors, including the nature of the private right or
interest that is threatened, the extent to which the proceeding is adversarial in character, the severity and
consequences of any action that might be taken, the burden that would be imposed by requiring use of all
or part of the full panoply of trial-type procedures, and the existence of other overriding interests, such as
the necessity for prompt action in the conduct of crucial military operations. The full context must
therefore be considered in each case.157 (Emphasis supplied)

Wasson, which was cited by Hagopian, broadly outlined the minimum standards of due process required
in the dismissal of a cadet. Thus:

[W]hen the government affects the private interests of individuals, it may not proceed arbitrarily but must
observe due process of law. x x x Nevertheless, the flexibility which is inherent in the concept of due
process of law precludes the dogmatic application of specific rules developed in one context to entirely
distinct forms of government action. "For, though 'due process of law' generally implies and includes
actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course
of judicial proceedings, * * * yet, this is not universally true." x x x Thus, to determine in any given case
what procedures due process requires, the court must carefully determine and balance the nature of the
private interest affected and of the government interest involved, taking account of history and the precise
circumstances surrounding the case at hand.

While the government must always have a legitimate concern with the subject matter before it may validly
affect private interests, in particularly vital and sensitive areas of government concern such as national
security and military affairs, the private interest must yield to a greater degree to the governmental. x x x
Few decisions properly rest so exclusively within the discretion of the appropriate government officials
than the selection, training, discipline and dismissal of the future officers of the military and Merchant
Marine. Instilling and maintaining discipline and morale in these young men who will be required to bear
weighty responsibility in the face of adversity -- at times extreme -- is a matter of substantial national
importance scarcely within the competence of the judiciary. And it cannot be doubted that because of
these factors historically the military has been permitted greater freedom to fashion its disciplinary
procedures than the civilian authorities.

We conclude, therefore, that due process only requires for the dismissal of a Cadet from the Merchant
Marine Academy that he be given a fair hearing at which he is apprised of the charges against him and
permitted a defense. x x x For the guidance of the parties x x x the rudiments of a fair hearing in broad
outline are plain. The Cadet must be apprised of the specific charges against him. He must be given an
adequate opportunity to present his defense both from the point of view of time and the use of witnesses
and other evidence. We do not suggest, however, that the Cadet must be given this opportunity both
when demerits are awarded and when dismissal is considered. The hearing may be procedurally informal
and need not be adversarial.158 (Emphasis supplied)

In Andrews, the U.S. Court of Appeals held that Wasson and Hagopian are equally controlling in cases
where cadets were separated from the military academy for violation of the Honor Code. Following the
two previous cases, it was ruled that in order to be proper and immune from constitutional infirmity, a
cadet who is sought to be dismissed or separated from the academy must be afforded a hearing, be
apprised of the specific charges against him, and be given an adequate opportunity to present his or her
defense both from the point of view of time and the use of witnesses and other
evidence.159 Conspicuously, these vital conditions are not too far from what We have already set in
Guzman and the subsequent rulings in Alcuaz v. Philippine School of Business Administration 160 and De
La Salle University, Inc. v. Court of Appeals.161

In this case, the investigation of Cadet 1 CL Cudia' s Honor Code violation followed the prescribed
procedure and existing practices in the PMA. He was notified of the Honor Report from Maj. Hindang. He
was then given the opportunity to explain the report against him. He was informed about his options and
the entire process that the case would undergo. The preliminary investigation immediately followed after
he replied and submitted a written explanation. Upon its completion, the investigating team submitted a
written report together with its recommendation to the HC Chairman. The HC thereafter reviewed the
findings and recommendations. When the honor case was submitted for formal investigation, a new team
was assigned to conduct the hearing. During the formal investigation/hearing, he was informed of the
charge against him and given the right to enter his plea. He had the chance to explain his side, confront
the witnesses against him, and present evidence in his behalf. After a thorough discussion of the HC
voting members, he was found to have violated the ' Honor Code. Thereafter, the guilty verdict underwent
the review process at the Academy level - from the OIC of the HC, to the SJA, to the Commandant of
Cadets, and to the PMA Superintendent. A separate investigation was also conducted by the HTG. Then,
upon the directive of the AFP-GHQ to reinvestigate the case, a review was conducted by the CRAB.
Further, a Fact-Finding Board/Investigation Body composed of the CRAB members and the PMA senior
officers was constituted to conduct a deliberate investigation of the case. Finally, he had the opportunity
to appeal to the President. Sadly for him, all had issued unfavorable rulings.
It is well settled that by reason of their special knowledge and expertise gained from the handling of
specific matters falling under their respective jurisdictions, the factual findings of administrative tribunals
are ordinarily accorded respect if not finality by the Court, unless such findings are not supported by
evidence or vitiated by fraud, imposition or collusion; where the procedure which led to the findings is
irregular; when palpable errors are committed; or when a grave abuse of discretion, arbitrariness, or
capriciousness is manifest.162 In the case of Cadet 1 CL Cudia, We find no reason to deviate from the
general rule. The grounds therefor are discussed below seriatim:

As to the right to be represented by a counsel –

For petitioners, respondents must be compelled to give Cadet 1 CL Cudia the right to be represented by a
counsel who could actively participate in the proceedings like in the cross-examination of the witnesses
against him before the CRAB or HC, if remanded. This is because while the CRAB allowed him to be
represented by a PAO lawyer, the counsel was only made an observer without any right to intervene and
demand respect of Cadet 1 CL Cudia's rights. 163 According to them, he was not sufficiently given the
opportunity to seek a counsel and was not even asked if he would like to have one. He was only properly
represented when it was already nearing graduation day after his family sought the assistance of the
PAO. Petitioners assert that Guzman is specific in stating that the erring student has the right to answer
the charges against him or her with the assistance of counsel, if desired.

On the other hand, respondents cited Lumiqued v. Exevea 164 and Nera v. The Auditor General 165 in
asserting that the right to a counsel is not imperative in administrative investigations or non-criminal
proceedings. Also, based on Cadet lCL Cudia's academic standing, he is said to be obviously not
untutored to fully understand his rights and express himself. Moreover, the confidentiality of the HC
proceedings worked against his right to be represented by a counsel. In any event, respondents claim
that Cadet 1 CL Cudia was not precluded from seeking a counsel's advice in preparing his defense prior
to the HC hearing.

Essentially, petitioners claim .. that Cadet lCL Cudia is guaranteed the right to have his counsel not just in
assisting him in the preparation for the investigative hearing before the HC and the CRAB but in
participating fully in said hearings. The Court disagrees.

Consistent with Lumiqued and Nera, there is nothing in the 1987 Constitution stating that a party in a non-
litigation proceeding is entitled to be represented by counsel. The assistance of a lawyer, while desirable,
is not indispensable. Further, in Remolona v. Civil Service Commission, 166 the Court held that "a party in
an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges
and of the respondent's capacity to represent himself, and no duty rests on such body to furnish the
person being investigated with counsel." Hence, the administrative body is under no duty to provide the
person with counsel because assistance of counsel is not an absolute requirement.

More in point is the opinion in Wasson, which We adopt. Thus:

The requirement of counsel as an ingredient of fairness is a function of all of the other aspects of the
hearing. Where the proceeding is non-criminal in nature, where the hearing is investigative and not
adversarial and the government does not proceed through counsel, where the individual concerned is
mature and educated, where his knowledge of the events x x x should enable him to develop the facts
adequately through available sources, and where the other aspects of the hearing taken as a whole are
fair, due process does not require representation by counsel. 167

To note, U.S. courts, in general, have declined to recognize a right to representation by counsel, as a
function of due process, in military academy disciplinary proceedings. 168 This rule is principally motivated
by the policy of "treading lightly on the military domain, with scrupulous regard for the power and authority
of the military establishment to govern its own affairs within the broad confines of constitutional due
process" and the courts' views that disciplinary proceedings are not judicial in nature and should be kept
informal, and that literate and educated cadets should be able to defend themselves. 169 In Hagopian, it
was ruled that the importance of informality in the proceeding militates against a requirement that the
cadet be accorded the right to representation by counsel before the Academic Board and that unlike the
welfare recipient who lacks the training and education needed to understand his rights and express
himself, the cadet should be capable of doing so. 170 In the subsequent case of Wimmer v. Lehman, 171 the
issue was not access to counsel but the opportunity to have counsel, instead of oneself, examine and
cross-examine witnesses, make objections, and argue the case during the hearing. Disposing of the case,
the U.S. Court of Appeals for the Fourth Circuit was not persuaded by the argument that an individual of a
midshipman's presumed intelligence, selected because he is expected to be able to care for himself and
others, often under difficult circumstances, and who has full awareness of what he is facing, with
counsel's advice, was deprived of due process by being required to present his defense in person at an
investigatory hearing.

In the case before Us, while the records are bereft of evidence that Cadet 1 CL Cudia was given the
option or was able to seek legal advice prior to and/or during the HC hearing, it is indubitable that he was
assisted by a counsel, a PAO lawyer to be exact, when the CRAB reviewed and reinvestigated the case.
The requirement of due process is already satisfied since, at the very least, the counsel aided him in the
drafting and filing of the Appeal Memorandum and even acted as an observer who had no right to actively
participate in the proceedings (such as conducting the cross-examination). Moreover, not to be missed
out are the facts that the offense committed by Cadet 1 CL Cudia is not criminal in nature; that the
hearings before the HC and the CRAB were investigative and not adversarial; and that Cadet lCL Cudia's
excellent-academic standing puts him in the best position to look after his own vested interest in the
Academy.

As to the confidentiality of records of the proceedings –

Petitioners allege that when Maj. Gen. Lopez denied in his March 11, 2014 letter Cadet lCL Cudia's
request for documents, footages, and recordings relevant to the HC hearings, the vital evidence negating
the regularity of the HC trial and supporting his defense have been surely overlooked by the CRAB in its
case review. Indeed, for them, the answers on whether Cadet 1 CL Cudia was deprived of due process
and whether he lied could easily be unearthed from the video and other records of the HC investigation.
Respondents did not deny their existence but they refused to present them for the parties and the Court
to peruse. In particular, they note that the Minutes of the HC dated January 21, 2014 and the HC Formal
Investigation Report dated January 20, 2014 were considered by the CRAB but were not furnished to
petitioners and the Court; hence, there is no way to confirm the truth of the alleged statements therein. In
their view, failure to furnish these documents could only mean that it would be adverse if produced
pursuant to Section 3 (e), Rule 131 of the Rules of Court. 172

For lack of legal basis on PMA' s claim of confidentiality of records, petitioners contend that it is the
ministerial duty of the HC to submit to the CRAB, for the conduct of intelligent review of the case, all its
records of the proceedings, including video footages of the deliberations and voting. They likewise argue
that PMA' s refusal to release relevant documents to Cadet 1 CL Cudia under the guise of confidentiality
reveals another misapplication of the Honor Code, which merely provides: "A cadet who becomes part of
any investigation is subject to the existing regulations pertaining to rules of confidentiality and, therefore,
must abide to the creed of secrecy. Nothing shall be disclosed without proper guidance from those with
authority" (IV. The Honor System, Honor Committee, Cadet Observer). This provision, they say, does not
deprive Cadet 1 CL Cudia of his right to obtain copies and examine relevant documents pertaining to his
case.

Basically, petitioners want Us to assume that the documents, footages, and recordings relevant to the HC
hearings are favorable to Cadet 1 CL Cudia's cause, and, consequently, to rule that respondents' refusal
to produce and have them examined is tantamount to the denial of his right to procedural due process.
They are mistaken.
In this case, petitioners have not particularly identified any documents, witness testimony, or oral or
written presentation of facts submitted at the hearing that would support Cadet 1 CL Cudia's defense. The
Court may require that an administrative record be supplemented, but only "where there is a 'strong
showing or bad faith or improper behavior' on the part of the agency," 173 both of which are not present
here. Petitioners have not specifically indicated the nature of the concealed evidence, if any, and the
reason for withholding it. What they did was simply supposing that Cadet 1 CL Cudia's guilty verdict
would be overturned with the production and examination of such documents, footages, and recordings.
As will be further shown in the discussions below, the requested matters, even if denied, would not relieve
Cadet 1 CL Cudia's predicament. If at all, such denial was a harmless procedural error since he was not
seriously prejudiced thereby.

As to the ostracism in the PMA –

To petitioners, the CRAB considered only biased testimonies and evidence because Special Order No. 1
issued on February 21, 2014, which directed the ostracism of Cadet 1 CL Cudia, left him without any
opportunity, to secure statements of his own witnesses. He could not have access to or approach the
cadets who were present during the trial and who saw the 8-1 voting result. It is argued that the Order
directing Cadet 1 CL Cudia's ostracism is of doubtful legal validity because the Honor Code unequivocally
announced: "x x x But by wholeheartedly dismissing the cruel method of ostracizing Honor Code
violators, PMA will not have to resort to other humiliating means and shall only have the option to make
known among its alumni the names of those who have not sincerely felt remorse for violating the Honor
Code."

On their part, respondents assert that neither the petition nor the petition-in-intervention attached a full
text copy of the alleged Special Order No. 1. In any case, attributing its issuance to PMA is improper and
misplaced because of petitioners' admission that ostracism has been absolutely dismissed as an
Academy-sanctioned activity consistent with the trend in International Humanitarian Law that the PMA
has included in its curriculum. Assuming that said Order was issued, respondents contend that it purely
originated from the cadets themselves, the sole purpose of which was to give a strong voice to the Cadet
Corps by declaring that they did not tolerate Cadet 1 CL Cudia's honor violation and breach of
confindentiality of the HC proceedings.

More importantly, respondents add that it is highly improbable and unlikely that Cadet 1 CL Cudia was
ostracized by his fellow cadets. They manifest that as early as January 22, 2014, he was already
transferred to the Holding Center. The practice of billeting an accused cadet at the Holding Center is
provided for in the Honor Code Handbook. Although within the PMA compound, the Holding Center is off-
limits to cadets who do not have any business to conduct therein. The cadets could not also ostracize him
during mess times since Cadet 1 CL Cudia opted to take his meals at the Holding Center. The
circumstances obtaining when Special Order No. 1 was issued clearly foreclose the possibility that he
was ostracized in common areas accessible to other cadets. He remained in the Holding Center until
March 16, 2014 when he voluntarily left the PMA. Contrary to his claim, guests were also free to visit him
in the Holding Center.

However, petitioners swear that Cadet 1 CL Cudia suffered from ostracism in the PMA. The practice was
somehow recognized by respondents in their Consolidated Comment and by PMA Spokesperson Maj.
Flores in a news report. The CHR likewise confirmed the same in its Resolution dated May 22, 2014. For
them, it does not matter where the ostracism order originated from because the PMA appeared to
sanction it even if it came from the cadets themselves. There was a tacit approval of an illegal act. If not,
those cadets responsible for ostracism would have been charged by the PMA officials. Finally, it is
claimed that Cadet 1 CL Cudia did not choose to take his meals at the Holding Center as he was not
allowed to leave the place. Petitioners opine that placing the accused cadet in the Holding Center is
inconsistent with his or her presumed innocence and certainly gives the implication of ostracism.

We agree with respondents. Neither the petition nor the petition-inintervention attached a full text copy or
even a pertinent portion of the alleged Special Order No. 1, which authorized the ostracism of Cadet 1 CL
Cudia. Being hearsay, its existence and contents are of doubtful veracity. Hence, a definite ruling on the
matter can never be granted in this case.

The Court cannot close its eyes though on what appears to be an admission of Cadet 1 CL Mogol during
the CHR hearing that, upon consultation with the entire class, the baron, and the Cadet Conduct Policy
Board, they issued an ostracism order against Cadet 1 CL Cudia. 174 While not something new in a military
academy,175 ostracism's continued existence in the modem times should no longer be countenanced.
There are those who argue that the "silence" is a punishment resulting in the loss of private interests,
primarily that of reputation, and that such penalty may render illusory the possibility of vindication by the
reviewing body once found guilty by the HC. 176 Furthermore, in Our mind, ostracism practically denies the
accused cadet's protected rights to present witnesses or evidence in his or her behalf and to be
presumed innocent until finally proven otherwise in a proper proceeding.

As to Cadet 1 CL Cudia's stay in the Holding Center, the Court upholds the same. The Honor Code and
Honor System Handbook provides that, in case a cadet has been found guilty by the HC of violating the
Honor Code and has opted not to resign, he or she may stay and wait for the disposition of the case. In
such event, the cadet is not on full-duty status and shall be billeted at the HTG Holding
Center.177 Similarly, in the U.S., the purpose of "Boarders Ward" is to quarter those cadets who are
undergoing separation actions. Permitted to attend classes, the cadet is sequestered , therein until final
disposition of the case. In Andrews, it was opined that the segregation of cadets in the Ward was a proper
exercise of the discretionary authority of Academy officials. It relied on the traditional doctrine that "with
respect to decisions made by Army authorities, 'orderly government requires us to tread lightly on the
military domain, with scrupulous regard for the power and authority of the military establishment to govern
its own affairs within the broad confines of constitutional due process.'" Also, in Birdwell v.
Schlesinger,178 the "administrative segregation" was held to be a reasonable exercise of military discipline
and could not be considered an invasion of the rights to freedom of speech and freedom of association.

Late and vague decisions –

It is claimed that Cadet 1 CL Cudia was kept in the dark as to the charge against him and the decisions
arrived at by the HC, the CRAB, and the PMA. No written decision was furnished to him, and if any, the
information was unjustly belated and the justifications for the decisions were vague. He had to constantly
seek clarification and queries just to be apprised of what he was confronted with.

Petitioners relate that upon being informed of the "guilty" verdict, Cadet 1 CL Cudia immediately inquired
as to the grounds therefor, but Cadet 1 CL Mogol answered that it is confidential since he would still
appeal the same. By March 11, 2014, Maj. Gen. Lopez informed Cadet 1 CL Cudia that the CRAB
already forwarded their recommendation for his dismissal to the General Headquarters sometime in
February-March 2014. Even then, he received no decision/recommendation on his case, verbally or in
writing. The PMA commencement exercises pushed through with no written decision from the CRAB or
the PMA on his appeal. The letter from the Office of the Adjutant General of the AFP was suspiciously
delayed when the Cudia family received the same only on March 20, 2014. Moreover, it fell short in laying
down with specificity the factual and legal bases used by the CRAB and even by the Office of the Adjutant
General. There remains no proof that the CRAB and the PMA considered the evidence presented by
Cadet 1 CL Cudia, it being uncertain as to what evidence was weighed by the CRAB, whether the same
is substantial, and whether the new evidence submitted by him was ever taken into account.

In refutation, respondents allege the existence of PMA's· practice of orally declaring the HC finding, not
putting it in a written document so as to protect the integrity of the erring cadet and guard the
confidentiality of the HC proceedings pursuant to the Honor System. Further, they aver that a copy of the
report of the CRAB, dated March 10, 2014, was not furnished to Cadet 1 CL Cudia because it was his
parents who filed the appeal, hence, were the ones who were given a copy thereof.
Petitioners' contentions have no leg to stand on. While there is a constitutional mandate stating that "[no]
decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the
law on which it is based," 179 such provision does not apply in Cadet 1 CL Cudia's case. Neither Guzman
nor Andrews require a specific form and content of a decision issued in disciplinary proceedings. The
Honor Code and Honor System Handbook also has no written rule on the matter. Even if the provision
applies, nowhere does it demand that a point-by-point consideration and resolution of the issues raised by
the parties are necessary.180 What counts is that, albeit furnished to him late, Cadet 1 CL Cudia was
informed of how it was decided, with an explanation of the factual and legal reasons that led to the
conclusions of the reviewing body, assuring that it went through the processes of legal reasoning. He was
not left in the dark as to how it was reached and he knows exactly the reasons why he lost, and is able to
pinpoint the possible errors for review.

As to the blind adoption of the HC findings –

Petitioners assert that, conformably with Sections 30 and 31 of C.A. No. 1, only President Aquino as the
Commander-in-Chief has the power to appoint and remove a cadet for a valid/legal cause. The law gives
no authority to the HC as the sole body to determine the guilt or innocence of a cadet. It also does not
empower the PMA to adopt the guilty findings of the HC as a basis for recommending the cadet's
dismissal. In the case of Cadet 1 CL Cudia, it is claimed that the PMA blindly followed the HC's finding of
guilt in terminating his military service.

Further, it is the ministerial duty of the CRAB to conduct a review de nova of all records without requiring
Cadet 1 CL Cudia to submit new evidence if it is physically impossible for him to do so. In their minds,
respondents cannot claim that the CRAB and the PMA thoroughly reviewed the HC recommendation and
heard Cadet lCL Cudia's side. As clearly stated in the letter from the Office of the AFP Adjutant General,
"[in] its report dated March 10, 2014, PMA CRAB sustained the findings and recommendations of the
Honor Committee x x x It also resolved the appeal filed by the subject Cadet." However, the Final
Investigation Report of the CRAB was dated March 23, 2014. While such report states that a report was
submitted to the AFP General Headquarters on March 10, 2014 and that it was only on March 12, 2014
that it was designated as a Fact-Finding Board/Investigating Body, it is unusual that the CRAB would do
the same things twice. This raised a valid and well-grounded suspicion that the CRAB never undertook an
in-depth investigation/review the first time it came out with its report, and the Final Investigation Report
was drafted merely as an afterthought when the lack of written decision was pointed out by petitioners so
as to remedy the apparent lack of due process during the CRAB investigation and review.

Despite the arguments, respondents assure that there was a proper assessment of the procedural and
legal correctness of the guilty verdict against Cadet 1 CL Cudia. They assert that the higher authorities of
the PMA did not merely rely on the findings of the HC, noting that there was also a separate investigation
conducted by the HTG from January 25 to February 7, 2014. Likewise, contrary to the contention of
petitioners that the CRAB continued with the review of the case despite the absence of necessary
documents, the CRAB conducted its own review of the case and even conducted another investigation by
constituting the Fact-Finding Board/Investigating Body. For respondents, petitioners failed to discharge
the burden of proof in showing bad faith on the part of the PMA. In the absence of evidence to the
contrary and considering further that petitioners' allegations are merely self-serving and baseless, good
faith on the part of the PMA' s higher authorities is presumed and should, therefore, prevail.

We agree with respondents.

The Honor Committee, acting on behalf of the Cadet Corps, has a limited role of investigating and
determining whether or not the alleged offender has actually violated the Honor Code. 181 It is given the
responsibility of administering the Honor Code and, in case of breach, its task is entirely investigative,
examining in the first instance a suspected violation. As a means of encouraging self-discipline, without
ceding to it any authority to make final adjudications, the Academy has assigned it the function of
identifying suspected violators.182 Contrary to petitioners' assertion, the HC does not have the authority to
order the separation of a cadet from the Academy. The results of its proceedings are purely
recommendatory and have no binding effect. The HC determination is somewhat like an indictment, an
allegation, which, in Cadet 1 CL Cudia's case, the PMA-CRAB investigated de novo. 183 In the U.S., it was
even opined that due process safeguards do not actually apply at the Honor Committee level because it is
only a "charging body whose decisions had no effect other than to initiate de nova proceedings before a
Board of Officers."184

Granting, for argument's sake, that the HC is covered by the due process clause and that irregularities in
its proceedings were in fact committed, still, We cannot rule for petitioners. It is not required that
procedural due process be afforded at every stage of developing disciplinary action. What is required is
that an adequate hearing be held before the final act of dismissing a cadet from the military
academy.185 In the case of Cadet 1 CL Cudia, the OIC of HC, the SJA, the Commandant of Cadets, and
the PMA Superintendent reviewed the HC findings. A separate investigation was also conducted by the
HTG. Then, upon the directive of the AFP-GHQ to reinvestigate the case, a review was conducted by the
CRAB. Finally, a Fact-Finding Board/Investigating Body composed of the CRAB members and the PMA
senior officers was constituted to conduct a deliberate investigation of the case. The Board/Body actually
held hearings on March 12, 13, 14 and 20, 2014. Instead of commendation, petitioners find it "unusual"
that the CRAB would do the same things twice and suspect that it never undertook an in-depth
investigation/review the first time it came out with its report. Such assertion is mere conjecture that
deserves scant consideration.

As to the dismissal proceedings as sham trial –

According to petitioners, the proceedings before the HC were a sham. The people behind Cadet ICL
Cudia's charge, investigation, and conviction were actually the ones who had the intent to deceive and
who took advantage of the situation. Cadet 1 CL Raguindin, who was a senior HC member and was the
second in rank to Cadet 1 CL Cudia in the Navy cadet 1 CL, was part of the team which conducted the
preliminary investigation. Also, Cadet I CL Mogol, the HC Chairman, previously charged Cadet 1 CL
Cudia with honor violation allegedly for cheating (particularly, conniving with and tutoring his fellow cadets
on a difficult topic by giving solutions to a retake exam) but the charge was dismissed for lack of merit.
Even if he was a non-voting member, he was in a position of influence and authority. Thus, it would be a
futile exercise for Cadet 1 CL Cudia to resort to the procedure for the removal of HC members. 186

Further, no sufficient prior notice of the scheduled CRAB hearing was given to Cadet I CL Cudia, his
family, or his PAO counsel. During one of her visits to him in the Holding Center, petitioner-intervenor was
advised to convince his son to resign and immediately leave the PMA. Brig. Gen. Costales, who later
became the CRAB Head, also categorically uttered to Annavee: "Your brother, he lied!" The CRAB
conferences were merely used to formalize his dismissal and the PMA never really intended to hear his
side. For petitioners, these are manifestations of PMA's clear resolve to dismiss him no matter what.

For their part, respondents contend that the CllR's allegation that Maj. Hindang acted in obvious bad faith
and that he failed to discharge his duty to be a good father of cadets when he "paved the road to [Cadet 1
CL Cudia's] sham trial by the Honor Committee" is an unfounded accusation. They note that when Maj.
Hindang was given the DR of Cadet 1 CL Cudia, he revoked the penalty awarded because of his
explanation. However, all revocations of awarded penalties are subject to the review of the STO.
Therefore, it was at the instance of Maj. Leander and the established procedure followed at the PMA that
Maj. Hindang was prompted to investigate the circumstances surrounding Cadet 1 CL Cudia's tardiness.
Respondents add that bad faith cannot likewise be imputed against Maj. Hindang by referring to the
actions taken by Maj. Jekyll Dulawan, the CTO of Cadets 1 CL Narciso and Arcangel who also arrived
late for their next class. Unlike the other cadets, Cadet 1 CL Cudia did not admit his being late and
effectively evaded responsibility by ascribing his tardiness to Dr. Costales.

As to the CHR' s finding that Cadet 1 CL Mogol was likewise "in bad faith and determined to destroy
[Cadet 1 CL] Cudia, for reasons of his own" because the former previously reported the latter for an honor
violation in November 2013, respondents argue that the bias ascribed against him is groundless as there
is failure to note that Cadet 1 CL Mogol was a non-voting member of the HC. Further, he cannot be
faulted for reporting a possible honor violation since he is the HC Chairman and nothing less is expected
of him. Respondents emphasize that the representatives of the HC are elected from each company, while
the HC Chairman is elected by secret ballot from the incoming first class representatives. Thus, if Cadet 1
CL Cu'dia believed that there was bias against him, he should have resorted to the procedure for the
removal of HC members provided for in the Honor Code Handbook.

Finally, respondents declare that there is no reason or ill-motive on the part of the PMA to prevent Cadet
1 CL Cudia from graduating because the Academy does not stand to gain anything from his dismissal. On
the contrary, in view of his academic standing, the separation militates against PMA' s mission to produce
outstanding, honorable, and exceptional cadets.

The Court differs with petitioners.

Partiality, like fraudulent intent, can never be presumed. Absent some showing of actual bias, petitioners'
allegations do not hold water. The mere imputation of ill-motive without proof is speculative at best.
Kolesa teaches us that to sustain the challenge, specific evidence must be presented to overcome

a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a
realistic appraisal of psychological tendencies and human weaknesses, conferring investigative and
adjudicative powers on the same individual poses such a risk of actual bias or prejudgment that the
practice must be forbidden if the guarantee of due process is to be implemented. 187

Although a CTO like Maj. Hindang must decide whether demerits are to be awarded, he is not an
adversary of the cadet but an educator who shares an identity of interest with the cadet, whom he
counsels from time to time as a future leader. 188 When the occasion calls for it, cadets may be questioned
as to the accuracy or completeness of a submitted work. A particular point or issue may be clarified. In
this case, the question asked of Cadet 1 CL Cudia concerning his being late in class is proper, since there
is evidence indicating that a breach of regulation may have occurred and there is reasonable cause to
believe that he was involved in the breach of regulations. 189

For lack of actual proof of bad faith or ill-motive, the Court shall rely on the non-toleration clause of the
Honor Code, i.e., "We do not tolerate those who violate the Code." Cadets are reminded that they are
charged with a tremendous duty far more superior to their personal feeling or friendship. 190 They must
learn to help others by guiding them to accept the truth and do what is right, rather than tolerating actions
against truth and justice.191 Likewise, cadets are presumed to be characteristically honorable; they cannot
overlook or arbitrarily ignore the dishonorable action of their peers, seniors, or subordinates. 192 These are
what Cadet 1 CL Mogol exactly did, although he was later proven to have erred in his accusation. Note
that even the Honor Code and Honor System Handbook recognizes that interpretation of one's honor is
generally subjective.193

Moreover, assuming, for the sake of argument, that Cadets 1 CL' Raguindin and Mogol as well as Brig.
Gen. Costales have an axe to grind against Cadet 1 CL Cudia and were bent on causing, no matter what,
the latter's downfall, their nefarious conduct would still be insignificant. This is so since the HC (both the
preliminary and formal investigation), the CRAB, and the Fact-Finding Board/Investigating Body are
collegial bodies. Hence, the claim that the proceedings/hearings conducted were merely a farce because
the three personalities participated therein is tantamount to implying the existence of a conspiracy,
distrusting the competence, independence, and integrity of the other members who constituted the
majority. Again, in the absence of specifics and substantial evidence, the Court cannot easily give
credence to this baseless insinuation.

As to the HC executive session/chambering –

Petitioners narrate that there was an irregular administrative hearing in the case of Cadet 1 CL Cudia
because two voting rounds took place. After the result of the secret balloting, Cadet 1 CL Mogol ordered
the voting members to go to a room without the cadet recorders. Therein, the lone dissenter, Cadet lCL
Lagura, was asked to explain his "not guilty" vote. Pressured to change his vote, he was made to cast a
new one finding Cadet 1 CL Cudia guilty. The original ballot was discarded and replaced. There was no
record of the change in vote from 8-1 to 9-0 that was mentioned in the HC formal report.

The Affidavit of Commander Junjie B. Tabuada executed on March 6, 2014 was submitted by petitioners
since he purportedly recalled Cadet 1 CL Lagura telling him that he was pressured to change his "not
guilty" vote after the voting members were "chambered." In the sworn statement, Commander Tabuada
said:

1. That after CDT lCL CUDIA [was] convicted for honor violation, I [cannot] remember exactly the
date but sometime in the morning of 23rd or 24th of January 2014, I was in my office filling up
forms for the renewal of my passport, CDT 1CL LAGURA entered and had business with my
staff;

2. When he was about to leave I called him. "Lags, halika muna dito," and he approached me and
I let him sit down on the chair in front of my table. I told and asked him, "Talagang nadali si Cudia
ah ... ano ha ang nangyari? Mag-Tagalog or mag-Bisaya ka." He replied, "Talagang NOT
GUILTY ang vote ko sa kanya sir", and I asked him, "Oh, bakit naging guilty di ha pag may isang
nag NOT GUILTY, abswelto na? He replied "Chinamber ako sir, bale pinapa-justify kung bakit
NOT GUILTY vote ko, at na-pressure din ako sir kaya binago ko, sir." So, I told him, "Sayang sya,
matalino at mabait pa naman" and he replied "oo nga sir". After that conversation, I let him go. 194

It is claimed that the HC gravely abused its discretion when it committed voting manipulation since, under
the rules, it is required to have a unanimous nine (9) votes finding an accused cadet guilty. There is
nothing in the procedure that permits the HC Chairman to order the "chambering" of a member who voted
contrary to the majority and subjects him or her to reconsider in order to reflect a unanimous vote. Neither
is there an order from the Chief of Staff or the President sanctioning the HC procedure or approving any
change therein pursuant to Sections 30 and 31 of C.A. No. 1. The HC, the CRAB, and the PMA violated
their own rules and principles as embodied in the Honor Code. Being a clear deviation from the
established procedures, the second deliberation should be considered null and void.

Petitioners further contend that the requirement of unanimous vote involves a substantive right which
cannot be unceremoniously changed without a corresponding amendment/revision in the Honor Code
and Honor System Handbook. In their view, "chambering" totally defeats the purpose of voting by secret
ballot as it glaringly destroys the very essence and philosophy behind the provisions of the Honor System,
which is to ensure that the voting member is free to vote what is in his or her heart and mind and that no
one can pressure or persuade another to change his or her vote. They suggest that if one voting member
acquits an accused cadet who is obviously guilty of the offense, the solution is to remove him or her from
the HC through the vote of non-confidence as provided for in the Honor Code. 195 Anent the above
arguments, respondents contend that a distinction must be made between the concepts of the Honor
Code and the Honor System. According to them, the former sets the standard for a cadet's, minimum
ethical and moral behavior and does not change, while the latter is a set of rules for the conduct of the
observance and implementation of the· Honor Code and may undergo necessary adjustments as may be
warranted by the incumbent members of the HC in order to be more responsive to the moral training and
character development of the cadets. The HC may provide guidelines when the Honor System can be
used to supplement regulations. This being so, the voting process is continuously subject to change.

Respondents note that, historically, a non-unanimous guilty verdict automatically acquits a cadet from the
charge of Honor violation. The voting members only write either "guilty" or "not guilty" in the voting sheets
without stating their name or their justification. However, this situation drew criticisms since there were
instances where a reported cadet already admitted his honor violation but was acquitted due to the lone
vote of a sympathetic voting member.
In the case of Cadet 1 CL Cudia, the HC adopted an existing practice that should the voting result in 7-2
or 8-1 the HC would automatically sanction a jury type of discussion called "executive session" or
"chambering," which is intended to elicit the explanation and insights of the voting member/s. This
prevents the tyranny of the minority or lone dissenter from prevailing over the manifest proof of guilt. The
assailed voting practice has been adopted and widely accepted by the PMA Siklab Diwa Class of 2014
since their first year in the Academy. The allegations of conspiracy and sham trial are, therefore, negated
by the fact that such practice was in place and applied to all cases of honor violations, not solely to the
case of Cadet 1CL Cudia.

It is emphasized by respondents that any decision to change vote rests solely on the personal conviction
of the dissenter/s, without any compulsion from the other voting members. There can also be no
pressuring to change one's vote to speak of since a vote may only be considered as final when the
Presiding Officer has affixed his signature.

To debunk Commander Tabuada's statements, respondents raise the argument that the Fact-Finding
Board/Investigating Body summoned Cadet 1 CL Lagura for inquiry. Aside from his oral testimony made
under oath, he submitted to the Board/Body an affidavit explaining that:

11. Sometime on 23rd or 24th of January 2014, I went to the Department of Naval Warfare to ask
permission if it is possible not to attend the Navy duty for the reason that I will be attending our baseball
game outside the Academy.

12. After I was permitted not to attend my Navy Duty and when I was about to exit out of the Office, CDR
JUNJIE B T ABU ADA PN, our Head Department Naval Warfare Officer, called my attention. I
approached him and he said: "Talagang nadali si Cudia ah. Ano ba talaga ang nangyari?" At first, I was
hesitant to answer because of the confidentiality of the Honor Committee proceedings. He again said:
"Wag kang mag-alala, atin, atin lang ito, alam ko naman na bawal magsabi." Then I answered: "Ako yung
isang not guilty Sir. Kaya [yung] Presiding Officer nagsabi na pumunta muna kami sa Chamber. Nung
nasa chamber kami, nagsalita [yung] mga nagvote ng Guilty tapos isa-isa nagsabi kung bakit ang boto
nila Guilty. Nung pakinggan ko, eh naliwanagan ako. Pinalitan ko yung boto ko from Not Guilty to Guilty
Sir." He replied: "Sayang si Cudia ano?" And I said: "Oo nga sir, [s]ayang si Cudia, mabait pa naman at
matalino."196

Cadet 1 CL Lagura restated the above in the Counter-Affidavit executed on March 12, 2014, which he
submitted before the CHR wherein he attested to the following:

3. I was chosen to be a voting member of the Honor Committee for Honor Code violation
committed by Cadet Cudia, for "lying". As a voting member, we are the one who assess or
investigate the case whether the reported Cadet is Guilty for his actions or not.

4. I was the only one who INITIALLY voted "NOT GUILTY" among the nine (9) voting members of
the Honor Committee in the case of Cdt Cudia for Lying.

5. I initially voted "NOT GUILTY" for the reason that after the proceedings and before the
presiding Officer told the members to vote, I was confused of the case of Cadet Cudia. I have
gathered some facts from the investigation to make my decision but for me it is not yet enough to
give my verdict of guilty to Cdt Cudia so I decided to vote "NOT GUILTY" with a reservation in my
mind that we will still be discussing our verdicts if we will arrive at 8-1 or 7-2. Thus, I can still
change my vote if I may be enlightened with the other's justifications.

6. After the votes were collected, the Presiding Officer told us that the vote is 8 for guilty and 1 for
not guilty. By way of practice and as I predicted, we were told to go inside the anteroom for
executive meeting and to discuss our respective justifications. I have been a member for two (2)
 years and the voting committee will always go for executive meeting whenever it will meet 8-1 or
7-2 votes.

7. I listened to them and they listened to me, then I saw things that enlightened my confusions
that time. I gave a thumbs-up sign and asked for another sheet of voting paper. I then changed
my vote from "NOT GUILTY" to "GUILTY" and the voting members of the Honor Committee came
up with the final vote of nine (9) votes for guilty and zero (0) votes for not guilty.

9. Cdt Cudia was called inside the courtroom and told that the verdict was GUILTY of LYING.
After that, all persons inside the courtroom went back to barracks.

10. Right after I changed to sleeping uniform, I was approached by Cdt Jocson and Cdt Cudia,
inquiring and said: "Bakit ka naman nagpalit ng boto? ., I answered: "Nasa process yan, may mali
talaga sa rason mo." They also asked who were inside the Chamber and I mentioned only Cdt
Arlegui and Cdt Mogol. That was the last time that Cdt Cudia and Cdt Jocson talked to me.

11. Sometime on 23rd or 24th of January 2014, I went to the Department of Naval Warfare to
asked (sic) permission if it is possible not to attend the Navy duty for the reason that I will be
attending our baseball game outside the Academy.

12. After I was permitted not to attend my Navy Duty and when I was about to exit out of the
Office, CDR JUNJIE B TABUADA PN, our Head Department Naval Warfare Officer, called my
attention. I approached him and he said: "Talagang nadali si Cudia ah. Ano ba talaga ang
nangyari?" At first, I was hesitant to answer because of the confidentiality of the Honor Committee
proceedings. He again said: "Wag kang mag-alala, atin, atin lang ito, alam ko naman na bawal
magsabi. " Then I answered: "Ako yung isang not guilty Sir. Kaya [yung} Presiding Officer
nagsabi na pumunta muna kami sa Chamher. Nung nasa chamber kami, nagsalita [yung] mga
nagvote ng Guilty tapos isa-isa nagsabi kung bakit ang boto nila Guilty. Nung pakinggan ko, eh
naliwanagan aka. Pinalitan ko yung boto ko from Not Guilty to Guilty Sir. " He replied: "Sayang si
Cudia ano?" And I said: "Oo nga sir, [s]ayang si Cudia, mabait pa naman at matalino. " 197

Still not to be outdone, petitioners argue that the very fact that Cadet 1 CL Lagura, as the lone dissenter,
was made to explain in the presence of other HC members, who were in disagreement with him, gives a
semblance of intimidation, force, or pressure. For them, the records of the HC proceedings, which were
not presented assuming they actually exist, could have been the best way to ensure that he was free to
express his views, reject the opinion of the majority, and stick to his decision. Also, it was pointed out that
Cadet 1 CL Lagura failed to clearly explain in his affidavit why he initially found Cadet 1 CL Cudia "not
guilty" and what made him change his mind. His use of general statements like he "was confused of the
case " and "saw things that enlightened my confusions " could hardly suffice to establish why he changed
his vote. Finally, petitioners note the admission of ·Cadet 1 CL Lagura during the CHR investigation that
he was the only one who was given another ballot sheet while in the chamber and that he accomplished it
in the barracks which he only submitted the following day. However, as the CHR found, the
announcement of the 9-0 vote was done immediately after the HC came out from the chamber and before
Cadet 1 CL Lagura submitted his accomplished ballot sheet.

We rule for respondents.

As to the manner of voting by the HC members, the Honor Code tersely provides:

After a thorough discussion and deliberation, the presiding member of the Board will call for the members
to vote whether the accused is GUILTY or NOT GUILTY. A unanimous vote (9 votes) of GUILTY decides
that a cadet is found guilty of violating the Honor Code. 198
From the above-quoted provision, it readily appears that the HC practice of conducting "executive
session" or "chambering" is not at all prohibited. The HC is given leeway on the voting procedures in'
actual cases taking into account the exigency of the times. What is important is that, in the end, there
must be a unanimous nine votes in order to hold a cadet guilty of violating the Honor Code.

Granting, for argument's sake, that the HC violated its written procedure, 199 We still rule that there is
nothing inherently wrong with the practice of "chambering" considering that the presence of intimidation or
force cannot automatically be inferred therefrom. The essence of secret balloting and the freedom to vote
based on what is in the heart and mind of the voting member is not necessarily diluted by the fact that a
second/final voting was conducted. As explained by Cadet 1CL Mogol before the CRAB:

13. x x x [The] dissenting voter would have to explain his side and insights regarding the case at hand.
The other members, on the other hand, would be given the chance to explain their votes as well as their
insights to the dissenting voter. The decision to change the vote of the dissenting voter rests solely on his
personal conviction. Thus, if he [or she] opted not to change his/her vote despite the discussion, his [or
her] vote is accorded respect by the Honor Committee. 200

It is elementary that intimidation or force is never presumed. Mere allegation is definitely not
evidence.1âwphi1 It must be substantiated and proved because a person is presumed to be innocent of a
crime or wrong and that official duty has been regularly performed. 201

The oral and written statements of Cadet 1 CL Lagura should settle the issue. Before the Fact-Finding
Board/Investigating Body and the CHR, he consistently denied that he was pressured by the other voting
members of the HC. His representation must be accepted as it is regardless of whether he has
satisfactorily elaborated his decision to change his vote. Being the one who was "chambered," he is more
credible to clarify the issue. In case of doubt, We have to rely on the faith that Cadet 1 CL Lagura
observed the Honor Code, which clearly states that every cadet must be his or her own Final' Authority in
honor; that he or she should not let other cadets dictate on him or her their sense of honor. 202 Moreover,
the Code implies that any person can have confidence that a cadet and any graduate of the PMA will be
fair and just in dealing with him; that his actions, words and ways are sincere and true. 203

As to the other alleged "irregularities" committed such as not putting on record the initial/first voting and
Cadet 1CL Lagura's bringing of his ballot sheet to and accomplishing it in the barracks, the Court shall no
longer dwell on the same for being harmless procedural errors that do not materially affect the validity of
the HC proceedings.

Cadet 1 CL Cudia 's alleged untruthful statements

Petitioners insist that Cadet 1 CL Cudia did not lie. According to them, there is no clear time reference as
to when was the actual dismissal or what was the exact time of dismissal - whether it should be the
dismissal inside the room or the dismissal after the section grade was given by Dr. Costales -in the minds
of Cadet 1 CL Cudia, Maj. Hindang, and the HC investigators and voting members. They claim that during
long examinations, the time of dismissal was usually five minutes before the class was set to end and the
protocol of dismissing the class 15 minutes earlier was not observed. When Maj. Hindang stated in
accusatory language that Cadet 1 CL Cudia perverted the truth by stating that OR432 class ended at
1500H, he did not state what was the true time of dismissal. He did not mention whether the truth he was
relying on was 5 or 15 minutes before the scheduled end of class.

It is also averred that Cadet 1 CL Cudia's only business was to ask Dr. Costales a query such that his
business was already finished as soon as she gave an answer. However, a new business was initiated by
Dr. Costales, which is, Cadet 1 CL Cudia must stay and wait for the section grade. At that point in time,
he was no longer in control of the circumstances. Petitioners claim that Dr. Costales never categorically
stated that Cadet lCL Cudia was lying. She recognized the confusion. Her text messages to him clarified
his alleged violation. Also, the CHR noted during its investigation that she could not exactly recall what
happened in her class on November 14, 2013.

Furthermore, petitioners reasoned out that when respondents stated that ENG412 class started at 3:05
p.m., it proves that Cadet 1 CL Cudia was obviously not late. If, as indicated in his Delinquency Report,
he was late two (2) minutes in his 1500-1600H class in ENG 412, he must have arrived 3:02 p.m.
Respondents, however, claim that the class started at 3:05 p.m. Thus, Cadet 1 CL Cudia was not late.

Relative to his explanation to the delinquency report, petitioners were of the view that what appears to
have caused confusion in the minds of respondents is just a matter of semantics; that the entire incident
was a product of inaccuracy, not lying. It is malicious for them to insinuate that Cadet 1 CL Cudia
purposely used incorrect language to hide the truth. Citing Merriam Webster's Dictionary, petitioners
argue that "dismiss" means to permit or cause to leave, while "class" refers to a body of students meeting
regularly to study the same subject. According to them, these two words do not have definite and precise
meanings but are generic terms. Other than the words "class" and "dismiss" used by Cadet 1 CL Cudia,
which may actually be used in their generic sense, there is nothing deceiving about what he said. Thus,
the answer he chose might be wrong or not correct, but it is not false or not true.

For petitioners, Cadet lCL Cudia's explanations are evidently truthful and with no intent to deceive or
mislead. He did not manipulate any fact and was truthful of his explanation. His .. statements were clear
and unambiguous but were given a narrow-minded interpretation. Even the Honor Code acknowledges
that "[e]xperience demonstrates that human communication is imperfect at best, and some actions are
often misinterpreted."

Lastly, petitioners contend that Cadet 1 CL Cudia's transcript of records reflects not only his outstanding
academic performance but proves his good conduct during his four-year stay in the Academy. He has
above-average grades in Conduct, with grades ranging from 96 to 100 in Conduct I to XI. His propensity
to lie is, therefore, far from the truth.

On the other hand, respondents were equally adamant to contend that Cadet 1 CL Cudia was obviously
quibbling, which, in the military parlance, is tantamount to lying. He fell short in telling a simple truth. He
lied by making untruthful statements in his written explanation. Respondents want Us to consider the
following:

First, their OR432 class was not dismissed late. During the formal investigation, Dr. Costales testified that
a class is dismissed as long as the instructor is not there and the bell has rung. In cases of lesson
examinations (LE), cadets are dismissed from the time they have answered their respective LEs. Here, as
Cadet Cudia stated in his Request for Reconsideration of Meted Punishment, "We had an LE that day (14
November 2013) in OR432 class. When the first bell rang (1455), I stood up, reviewed my paper and
submitted it to my instructor, Ms. Costales. xxx" Clearly, at the time Cadet Cudia submitted his papers, he
was already considered dismissed. Thus, he cannot claim that his [OR432] class ended at 3:00 in the
afternoon (1500H) or "a bit late."

Second, Cadet Cudia was in control of the circumstances leading to his tardiness. After submitting his
paper, Cadet Cudia is free to leave and attend his next class. However, he initiated a conversation with
Dr. Costales regarding their grades. He was not under instruction by Dr. Costales to stay beyond the
period of her class.

Furthermore, during the investigation of the Fact-Finding Board/Investigating Body, Dr. Costales clarified
her statements in her written explanation. She explained that the "instruction to wait" is a response to
Cadet Cudia' s request and that it was not her initiated instruction. Clearly, there was no directive from Dr.
Costales for Cadet Cudia and the other cadets to stay. On the contrary, it was them who wanted to meet
with the instructor. Third, contrary to Cadet Cudia's explanation, his subsequent class, ENG412, did not
exactly start at 3:00 in the afternoon (1500H). In the informal review conducted by the HTG to check the
findings of the HC, Professor Berong confirmed that her English class started as scheduled (3:05 in the
afternoon, or 1505H) and not earlier. Cadet 1 CL Barrawed, the acting class marcher of ENG412 also
testified that their class started as scheduled (3 :05 in the afternoon, or 1505) and not earlier. 204

Respondents were unimpressed with the excuse that Cadet 1 CL Cudia had no intention to mislead or
deceive but merely used wrong and unfitting words in his explanations. For them, considering his
academic standing, it is highly improbable that he used incorrect language to justify his mistake.
Respondents' arguments are tenable.

The issue of whether Cadet 1 CL Cudia committed lying is an issue of fact. Unfortunately for petitioners,
the Court, not being a trier of facts, cannot pass upon factual matters as it is not duty-bound to analyze
and weigh again the evidence considered in the proceedings below. Moreover, We reiterate the long
standing rule that factual findings of administrative tribunals are ordinarily accorded respect if not finality
by the Court. In this case, as shown in the previous discussions, there is no evidence that the findings of
the investigating and reviewing bodies below are not supported by evidence or vitiated by fraud,
imposition or collusion; that the procedure which led to the findings is irregular; that palpable errors were
committed; or that a grave abuse of discretion, arbitrariness, or capriciousness is manifest. With respect
to the core issue of whether lying is present in this case, all investigating and reviewing bodies are in
consonance in holding that Cadet 1 CL Cudia in truth and in fact lied.

For purposes of emphasis though, We shall supplement some points.

As succinctly worded, the Honor Code of the Cadet Corps Armed Forces of the Philippines (CCAFP)
states: "We, the Cadets, do not lie, cheat, steal, nor tolerate among us those who do. "

The First Tenet of the Honor-Code is "We do not lie. " Cadets violate the Honor Code by lying if they
make an oral or written statement which is contrary to what is true or use doubtful information with the
intent to deceive or mislead.205 It is expected that every cadet's word is accepted without challenge on its
truthfulness; that it is true without qualification; and that the cadets must answer directly, completely and
truthfully even though the answer may result in punitive action under the CCPB and CCAFPR. 206

To refresh, in his Explanation of Report dated December 8, 2013, Cadet 1 CL Cudia justified that: "I came
directly from OR432 Class. We were dismissed a bit late by our instructor Sir." Subsequently, in his
Request for Reconsideration of Meted Punishment to Maj. Leander, he reasoned out as follows:

I strongly believe that I am not in control of the circumstances, our 4th period class ended 1500H and our
5th period class, which is ENG412, started 1500H also. Immediately after 4t period class, I went to my
next class without any intention of being late Sir.207

In this case, the Court agrees with respondents that Cadet 1 CL Cudia committed quibbling; hence, he
lied in violation of the Honor Code.

Following an Honor Reference Handbook, the term "Quibbling" has been defined in one U.S. case as
follows:

A person can easily create a false impression in the mind of his listener by cleverly wording what he says,
omitting relevant facts, or telling a partial truth. When he knowingly does so with the intent to deceive or
mislead, he is quibbling. Because it is an intentional deception, quibbling is a form of lying. 208

The above definition can be applied in the instant case. Here, instead of directly and completely telling the
cause of his being late in the ENG412 class of Prof. Berong, Cadet 1 CL Cudia chose to omit relevant
facts, thereby, telling a half-truth.
The two elements that must be presented for a cadet to have committed an honor violation are:

1. The act and/or omission, and

2. The intent pertinent to it.

Intent does not only refer to the intent to violate the Honor Code, but intent to commit or omit the act
itself.209

The basic questions a cadet must always seek to answer unequivocally are:

1. Do I intend to deceive?

2. Do I intend to take undue advantage?

If a cadet can answer NO to BOTH questions, he or she is doing the honorable thing. 210

Intent, being a state of mind, is rarely susceptible of direct proof, but must ordinarily be inferred from the
facts, and therefore, can only be proved by unguarded expressions, conduct and circumstances
generally.211 In this case, Cadet 1 CL Cudia's intent to deceive is manifested from the very act of
capitalizing on the use of the words "dismiss" and "class." The truth of the matter is that the ordinary
usage of these two terms, in the context of an educational institution, does not correspond to what Cadet
1 CL Cudia is trying to make it appear. In that sense, the words are not generic and have definite and
precise meaning.

By no stretch of the imagination can Cadets 1 CL Cudia, Miranda, Arcangel, and Narciso already
constitute a "class." The Court cannot agree that such term includes "every transaction and
communication a teacher does with her students." Clearly, it does not take too much intelligence to
conclude that Cadet 1 CL Cudia should have been accurate by pinpointing who were with him when he
was late in the next class. His deceptive explanation is made more obvious when compared with what
Cadets 1 CL Archangel and Narciso wrote in their DR explanation, which was: "We approached our
instructor after our class."212

Further, it is unimportant whether the time of dismissal on November 14, 2013 was five or fifteen minutes
ahead of the scheduled end of class. Worth noting is that even Dr. Costales, who stood as a witness for
Cadet 1 CL Cudia, consistently admitted before the HC, the Fact-Finding Board/Investigating Body, and
the CHR that he was already dismissed when he passed his LE paper. 213 During the hearing of the
Board/Body, she also declared that she merely responded to his request to see the results of the UE 1
and that she had reservations on the phrases "under my instruction" and "dismissed a bit late" used in his
letter of explanation to the HC. In addition, Dr. Costales manifested her view before the CHR that the act
of Cadet 1 CL Cudia of inquiring about his grade outside their classroom after he submitted his LE paper
is not part of the class time because the consultation, being cadet-initiated, is voluntary. 214 Assuming, for
the sake of argument, that a new business was initiated by Dr. Costales when Cadet 1 CL Cudia was
asked to stay and wait for the section grade, still, this does not acquit him. Given such situation, a
responsible cadet who is fully aware of the time constraint has the last say, that is, to politely decline the
invitation and immediately go to the next class. This was not done by Cadet 1 CL Cudia. Thus, it cannot
be said that he already lost control over the circumstances.

It is apparent, therefore, that Cadet 1 CL Cudia cunningly chose words which led to confusion in the
minds of respondents and eventually commenced the HC inquiry. His case is not just a matter of
semantics and a product of plain and simple inaccuracy. There is manipulation of facts and presentation
of untruthful explanation constitutive of Honor Code violation.
Evidence of prior good conduct cannot clear Cadet 1 CL Cudia .. While his Transcript of Records (TOR)
may reflect not only his outstanding academic performance but his excellent grade in subjects on Conduct
during his four-year stay in the PMA, 215 it does not necessarily follow that he is innocent of the offense
charged. It is enough to say that "evidence that one did or did not do a certain thing at one time is not
admissible to prove that he did or did not do the same or similar thing at another time." 216 While the TOR
may be received to prove his identity or habit as an exceptional PMA student, it does not show his
specific intent, plan, or scheme as cadet accused of committing a specific Honor Code violation.

Dismissal from the PMA as unjust and cruel punishment

Respondents insist that violation of the Honor Code warrants separation of the guilty cadet from the cadet
corps. Under the Cadet Corps Armed Forces of the Philippines Regulation (CCAFPR), a violation of the
Cadet Honor Code is considered Grave (Class 1) delinquency which merits a recommendation for a
cadet's dismissal from the PMA Superintendent. The same is likewise clear from the Honor Code and
Honor System Handbook. Cadet 1 CL Cudia is, therefore, presumed to know that the Honor Code does
not accommodate a gradation or degree of offenses. There is no difference between a little lie and a huge
falsehood. Respondents emphasize that the Honor Code has always been considered as an absolute
yardstick against which cadets have measured themselves ever since the PMA began and that the Honor
Code and System seek to assure that only those who are able to meet the high standards of integrity and
honor are produced by the PMA. As held in Andrews, it is constitutionally permissible for the military "to
set and enforce uncommonly high standards of conduct and ethics. " Thus, in violating the Honor Code,
Cadet 1 CL Cudia forfeits his privilege to graduate from the PMA.

On their part, petitioners concede that if it is proven that a cadet breached the Honor Code, the offense
warrants his or her dismissal since such a policy may be the only means to maintain and uphold the spirit
of integrity in the military. 217 They maintain though that in Cadet 1 CL Cudia's case there is no need to
distinguish between a "little lie" and a "huge falsehood" since he did not lie at all. Absent any intent to
deceive and to take undue advantage, the penalty imposed on him is considered as unjust and cruel.
Under the circumstances obtaining in this case, the penalty of dismissal is not commensurate to the fact
that he is a graduating cadet with honors and what he allegedly committed does not amount to an
academic deficiency or an intentional and flagrant violation of the PMA non-academic rules and
regulations. Citing Non, petitioners argue that the penalty imposed must be proportionate to the offense.
Further, lsabelo, Jr. is squarely applicable to the facts of the case. Cadet 1 CL Cudia was deprived of his
right to education, the only means by which he may have a secure life and future.

Considering Our finding that Cadet 1 CL Cudia in truth and in fact lied and his acceptance that violation of
the Honor Code warrants the ultimate penalty of dismissal from the PMA, there is actually no more
dispute to resolve. Indeed, the sanction is clearly set forth and Cadet 1 CL Cudia, by contract, risked this
when he entered the Academy.218 We adopt the ruling in Andrews 219 wherein it was held that, while the
penalty is severe, it is nevertheless reasonable and not arbitrary, and, therefore, not in violation of due
process. It quoted the disposition of the district court, thus:

The fact that a cadet will be separated from the Academy upon a finding that he has violated the Honor
Code is known to all cadets even prior to the beginning of their careers there. The finding of a Code
violation by hypothesis includes a finding of scienter on the part of the offender. While separation is
admittedly a drastic and tragic consequence of a cadet's transgression, it is not an unconstitutionally
arbitrary one, but rather a reasonable albeit severe method of preventing men who have suffered ethical
lapses from becoming career officers. That a policy of admonitions or lesser penalties for single violations
might be more compassionate --or even more effective in achieving the intended result --is quite
immaterial to the question of whether the harsher penalty violates due process. 220

Nature of the CHR Findings

Petitioners contend that the PMA turned a blind eye on the CHR's recommendations. The CHR, they
note, is a constitutional body mandated by the 1987 Constitution to investigate all forms of human rights
violations involving civil and political rights, and to conduct investigative monitoring of economic, social,
and cultural rights, particularly of vulnerable sectors of society. Further, it was contended that the results
of CHR's investigation and recommendations are so persuasive that this Court, on several occasions like
in the cases of Cruz v. Sec. of Environment & Natural Resources 221 and Ang Ladlad LGBT Party v.
Commission on Elections,222 gave its findings serious consideration. It is not, therefore, too late for the
Court to hear what an independent and unbiased fact-finding body has to say on the case.

In opposition, respondents assert that Simon, Jr. v. Commission on Human Rights 223 ruled that the CHR
is merely a recommendatory body that is not empowered to arrive at a conclusive determination of any
controversy.

We are in accord with respondents.

The findings of fact and the conclusions of law of the CHR are merely recommendatory and, therefore,
not binding to this Court. The reason is that the CHR's constitutional mandate extends only to the
investigation of all forms of human rights violations involving civil and political rights. 224 As held in Cariño
v. Commission on Human Rights225 and a number of subsequent cases,226 the CHR is only a fact-finding
body, not a court of justice or a quasi-judicial agency. It is not empowered to adjudicate claims on the
merits or settle actual case or controversies. The power to investigate is not the same as adjudication:

The most that may be conceded to the Commission in the way of adjudicative power is that it may
investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations
involving civil and political rights. But fact-finding is not adjudication, and cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence
and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a controversy must
be accompanied by the authority of applying the law to those factual conclusions to the end that the
controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals
or modes of review as may be provided by law. This function, to repeat, the Commission does not have.

xxxx

[i]t cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-judicial
bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense,
these terms have well understood and quite distinct meanings.

"Investigate, "commonly understood, means to examine, explore, inquire or delve or probe into, research
on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: x x x to subject to an official probe x x x: to conduct an official
inquiry;" The purpose of investigation, of course, is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the
facts inquired into by application of the law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find
out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an
investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of
which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; xx x an inquiry, judicial or
otherwise, for the discovery and collection of facts concerning a certain matter or matters."

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine,
resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the
parties to a court case) on the merits of issues raised: xx to pass judgment on: settle judicially: x x x act
as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial
powers: xx to award or grant judicially in a case of controversy x x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority.1âwphi1 To
determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on
judicially, to decide, settle or decree, or to sentence or condemn. xx Implies a judicial determination of a
fact, and the entry of a judgment. "226

All told, petitioners are not entitled to moral and exemplary damages in accordance with Articles 19, 2217,
2219 and 2229 of the Civil Code. The dismissal of Cadet 1 CL Cudia from the PMA did not effectively
deprive him of a future. Cliche though it may sound, being a PMA graduate is not the "be-all and end-all"
of his existence. A cadet separated from the PMA may still continue to pursue military or civilian career
elsewhere without suffering the stigma attached to his or her dismissal. For one, as suggested by
respondents, DND-AFP Circular No. 13, dated July 15, 1991, on the enlistment and reenlistment in the
APP Regular Force, provides under Section 14 (b) thereof that priority shall be given to, among others,
the ex-PMA or PAFFFS cadets.227 If the positions open does not appeal to his interest for being way
below the rank he could have achieved as a PMA graduate, Cadet 1 CL Cudia could still practice other
equally noble profession or calling that is best suited to his credentials, competence, and potential.
Definitely, nobody can deprive him of that choice.

WHEREFORE, the Petition is DENIED. The dismissal of Cadet First Class Aldrin Jeff P. Cudia from the
Philippine Military Academy is hereby AFFIRMED. No costs.

SO ORDERED.

2. G.R. No. 160684

CLT REALTY DEVELOPMENT CORPORATION, Petitioner,

vs.
HI-GRADE FEEDS CORPORATION, REPUBLIC OF THE PHILIPPINES (through the OFFICE OF
THE SOLICITOR GENERAL), REGISTRY OF DEEDS OF METRO MANILA, DISTRICT III,
CALOOCAN CITY , and the COURT OF APPEALS, Respondents.

DECISION
PEREZ, J.:

The properties in dispute were formerly part of the notorious Maysilo Estate left by Gonzalo Tuason,
the vastness of which measures 1,660.26 hectares, stretching across Caloocan City, Valenzuela,
and Malabon, covered by five (5) mother titles or Original Certificate of Title (OCT). One of the
mother titles is OCT No. 994, the mother title in dispute. Later on, smaller lots forming part of the
Maysilo Estate were sold to different persons. Several subsequent subdivisions, consolidations, and
one expropriation of the Estate, spawned numerous legal disputes, living-up to the name "Land of
caveat Emptor"  one of these disputed lots was lot 26, the property subject of this litigation.
1

Assailed in this Petition for Review on Certiorari are the Decision  and Resolution  of the Court of
2 3

Appeals in CA-G.R. CV No. 53770 dated 18 June 2003 and 28 October 2003, respectively, which
annulled petitioner CLT Realty Development Corporation's (CLT) TCT No. T-177013 and affirmed
Hi-Grade Feeds Corporation's (Hi-Grade) TCTs No. 237450 and No. T-146941.

The conflict arose due to an overlapping of the properties of CL T and Hi-Grade, which prompted CL
T to file a case for Annulment of Transfer Certificates of Title, Recovery of Possession, and
Damages before the Regional Trial Court (RTC) of Caloocan City, Branch 121, docketed as Civil
Case No. C-15463 against Hi-Grade.

Version of Hi-Grade

Respondent Hi-Grade is the registered owner of two (2) parcels of land covered by TCT Nos.
237450 and T-146941, derived from TCT No. 4211 of the Register of Deeds of the Province of Rizal,
registered under the names of Alejandro Ruiz (Ruiz) and Mariano Leuterio (Leuterio ), which is a
derivative title of OCT No. 994, the mother title.
4

Tracing the line of transfer that preceded the title of Hi-Grade, it is averred that TCT No. 4211 was
registered under the names of Ruiz and Leuterio on 9 September 1918. Later, Lot 26 was sold to
Francisco Gonzalez (Gonzalez), which resulted in the cancellation of TCT No. 4211 and its
replacement by TCT No. 5261, registered under the name of Gonzalez. 5

Upon Gonzalez's death, TCT No. 5261 was cancelled and replaced by TCT No. 35486, registered
under the name of his surviving spouse Rufina Narciso Vda. De Gonzalez. The land covered by TCT
No. 35486 was subdivided into seven (7) lots under subdivision plan Psd-21154. By virtue of Psd-
21154, TCT No. 35486 was cancelled and seven (7) new titles were issued, TCTs No. 1368 to No.
1374, registered under the children of Gonzalez.

In 194 7, the Government expropriated the seven lots.  By virtue of the expropriation, TCTs No. 1368
6

to No. 1374 were cancelled and replaced by TCTs No. 12836 to No. 12842. Afterwards, by virtue of
Consolidated Subdivision Plan Psd (LRC) Pcd-1828, the Government consolidated the titles and
then further subdivided the property into 77 lots.

One of the 77 lots was registered in the name of Benito Villanueva under TCTs No. 23027 to No.
23028, which was further subdivided into Lot-A and 17-B, pursuant to subdivision plan Psd-276839.
One of the properties in dispute is Lot 17-B, which was later on registered in the name of Jose
Madulid, Sr. (Madulid, Sr.), under TCT No. C-32979, which was later on sold to Hi-Grade.

Another lot resulting from the Government's consolidation and subdivision of the Maysilo Estate into
77 lots, is Lot No. 52, which was registered in the name of Inocencio Alvarez (Alvarez) under TCT
No. 7363. Soon after, Alvarez sold Lot No. 52 to Madulid, Sr. TCT No. 7363 was cancelled and TCT
No. 7364 was issued to Madulid, Sr. Afterwards, Madulid, Sr. sold the lot to Hi-Grade. This is
another one of the properties in dispute.

As a review, first, Hi-Grade traces its title to TCTs No. 7364 and No. C-32979, which were registered
in the name Madulid, Sr., which in tum stemmed from TCT Nos. 36557-63/T-460.

TCT Nos. 36557-63/T-460 were derived from TCTs No. 1368 to No. 1374.

TCTs No. 1368 to No. 1374 stemmed from TCT No. 35486, which was subdivided into
smaller lots.

TCT No. 35486 was derived from TCT No. 5261.

TCT No. 5261 stemmed from TCT No. 4211.

Finally, TCT No. 4211 was derived from OCT No. 994, the mother title.

Version of CLT

CLT is the registered owner of TCT No. T-177013, by virtue ofa Deed of Absolute Sale with Real
Estate Mortgage dated 10 December 1988, executed by the former registered owner, Estelita I.
Hipolito.

CLT argued that Hi-Grade's title is null and void for being fake and spurious based on the following:

1. As shown in the face of TCT No. 4211, it purports to have been derived from OCT No.
994;

2. The original copy of OCT No. 994, which is existing and in due form, on file with the
Registry of Deeds of Caloocan City, contains dilapidated pages and no longer contains the
pages where Lot No. 26 and some other lots are supposedly inscribed.

3. Upon examination of the original copy of OCT No. 994, it can be seen that the technical
descriptions of the lots and the certificate itself are entirely written in the English language.
On the other hand, the technical descriptions on the alleged TCTs No. 4211, No. 5261, and
No. 35486 are still inscribed in the Spanish language.

4. The dates of the original survey of OCT No. 994, the mother title of TCT No. 4211, i.e., 8-
27 September, 4-21 October and 17-18 November 1911, are not indicated on TCTs No.
4211, No. 5261, and No. 35486. Rather, an entirely different date, 22 December 1917, is
indicated at the end of the Spanish technical descriptions on the alleged TCTs No. 4211, No.
5261, and No. 35486.

5. The parcel of land covered successively by TCTs No. 4211, No. 5261, and No. 35486 is
not identified by a lot number and there is no reference or mention of Lot No. 26 of the
Maysilo Estate in the technical description of said titles.

6. There is no subdivision survey plan number indicated on TCTs No. 4211, No. 5261, and
No. 35486 covering the subdivision of Lot No. 26 of the Maysilo Estate.
 7. The plan Psd-21154 which subdivided the lot covered by TCT No. 35486 (formerly
covered by TCT No. 4211, then TCT No. 5261), could not be traced at the official depository
of plans, which is the Lands Management Bureau (LMB). According to the EDPS Listings of
the Records Management Division of the LMB, there is no record of Plan Psd-21154. Said
EDPS listings indicate those records which were surveyed after the Second World War. It
appears, from TCTs No. 1368 to No. 1374, plan PSD-21154 was done after the war on 15,
21, 29 September and 5-6 October 1946.

8. The technical descriptions inscribed on TCTs No. 1368 to No. 1374 show that the tie
points deviated from the mother lot's tie point, which is the Bureau of Lands Location
Monument ("BLLM") No. 1, Caloocan. Instead, different location monuments of the adjoining
Piedad Estate were used. The tie point used in TCT No. 1368 is B.M. 10, Piedad Estate;
while TCTs No. 1369 and No. 1470 used B.M. No. 8, Piedad Estate; and TCTs No. 1371,
No. 1372, No. 1373, and No. 1374 used B.M. No. 7, Piedad Estate. The changing tie points
resulted in the shifting of the position of the seven lots in relation to the mother lot, using their
technical descriptions inscribed on the face of the titles. Thus, when plotted, the seven lots
do not fall exactly inside the boundary of the mother lot. The same is true when the lots
described on the titles of Hi-Grade are plotted on the basis of their technical descriptions
inscribed on the titles.

9. TCT No. 4211 contains patent infirmities, inconsistencies, and irregularities indicating that
it is a falsified document representing a fictitious title and is, therefore, null and void. The fact
was confirmed by an examination by the Forensic Chemistry Division of the National Bureau
of Investigation, which concluded that TCT No. 4211 was prepared only sometime in the
1940s and not in 1918, as it is made to appear on the face of the document. Thus, the series
of titles from where Hi-Grade's titles were derived, starting from TCTs No. 4211, No. 5261,
and No. 35486, and up to and including the titles of HiGrade, are also necessarily null and
void.

During trial, CL T presented the following witnesses: (1) Ramon Velazquez (Velazquez), Officer-in-
Charge of the Survey Records Section, Records Management Division of the LMB, who testified that
the LMB does not have a copy of Psd 21154; (2) Norberto Vasquez, Jr. (Vasquez), Deputy Register
of Deeds of Caloocan City, who identified the various titles relevant to the case; (3) Juanita Bustalino
(Bustalino), a licensed Geodetic Engineer, who testified that CL T engaged his services to survey
the subject property and discovered that there was an overlap between CLT's and HiGrade's titles;
(4) Atty. Rafael Antonio M. Santos, one of the counsel of CLT; and (5) Aida R. Villora-Magsipoc, a
Forensic Chemist of the Forensic Division, National Bureau of Investigation, who examined the titles
as an expert witness.

On the other hand, Hi-Grade presented its sole witness, Atty. Jose Madulid, counsel for and
stockholder of Hi-Grade, and son of Hi-Grade's predecessor, Jose Madulid, Sr., who testified that his
family has been occupying the subject properties under the concept of an owner for more than
twenty-seven (27) years, until the properties were transferred to HiGrade.

The Ruling of the RTC

After trial, the RTC  ruled in favor of CLT. According to the RTC, Hi-Grade's title, the older title,
7

cannot prevail over CLT's title because it suffers from patent defects and infirmities. Although Hi-
Grade paid realty taxes on the subject properties, it is not considered as a conclusive proof of
ownership. The dispositive portion of the Decision of the RTC dated 27 December 1995 reads:
WHEREFORE, premises considered and by preponderance of evidence, judgment is hereby
rendered in favor of the plaintiff CL T REALTY DEVELOPMENT CORP. and against defendants HI-
GRADE FEEDS CORP. et. al., ordering

1. TCT Nos. 237450 and 146941 in the name of the defendant null and void and accordingly
ordering their cancellation;

2. defendant to vacate the portion of Lot No. 26 presently occupied by it and turn over
possession of the same to the plaintiff; and

3. defendant to pay the costs of suit.

SO ORDERED. 8

Aggrieved, Hi-Grade filed a Motion for New Trial and/or Reconsideration on the grounds of newly
discovered evidence and serious and patent errors in the court's appreciation of evidence and
factual findings based on the decision of the court in Civil Case No. C-15491, entitled "CLT v. Sta.
Nino Kapitbahayan Association. " The R TC denied the motion for utter lack of merit. According to
the RTC, the ruling in favor of Hi-Grade in Sta. Nino is not a newly-discovered evidence, as Hi-
Grade could not have failed to produce such evidence if it exercised reasonable diligence. HiGrade'
s reliance in the aforesaid case is already moot and academic as the court in Sta. Nino already
reconsidered its decision and upheld the validity of CL T's title.

The Ruling of the Court of Appeals

Impelled by the adverse ruling of the RTC, Hi-Grade elevated the case to the Court of Appeals.
During the pendency of the appeal, Hi-Grade filed a Motion to Admit and Take Judicial Notice of
Committee Report on Senate

Inquiry into Maysilo Estate Submitted by the Committees on Justice and Human Rights and on
Urban Planning, Housing and Resettlement (Senate Report) on 1 July 1998. The Court of Appeals
granted the motion in a Resolution  dated 31 August 1998. Included in the Resolution, however, is a
9

statement that although the Court of Appeals takes judicial notice of the Senate Report, the Court of
Appeals is not bound by the findings and Conclusions therein. . 10

In the meantime, the Office of the Solicitor General (OSG), on behalf of the Republic and in
representation of the Administrator of the Land Registration Authority, filed a Petition for Intervention
dated 25 August 1998. The OSG averred that its intervention is indispensable as it is pursuant to its
duty to preserve the integrity of the Torrens system of registration and to protect the Assurance
Fund, in connection with which it can initiate necessary actions for the annulment of titles irregularly
and fraudulently issued. The Court of Appeals granted the OSG motion. The Court of Appeals
resolved the issue on intervention in the appealed Decision dated 18 June 2003. According to the
Court of Appeals, due to the magnitude and significance that will affect the stability and integrity of
the Torrens system, the State has sufficient interest in the case.

Departing from the trial court's findings of fact, the Court of Appeals ruled as baseless the trial
court's reliance on the testimonies of CL T's witnesses, Vasquez and Bustalino, on the alleged
patent infirmities and defects in TCT No. 4211. According to the Court of Appeals, Vasquez and
Bustalino never testified that the issuance of TCT No. 4211 failed to conform to the registration
procedures in 1917, the year it was issued. Also, Vasquez and Bustalino are incompetent to testify
on the customary practices in land registration at that time. Reversing the Decision of the RTC, the
Decision of the Court of Appeals reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE and a new one
entered DISMISSING CLT's complaint a quo and upholding the validity of TCT Nos. 237450 and T-
146941 of appellant Hi-Grade Feeds Corporation.

Appellant CL T is further ordered to surrender its owner's duplicate copy of TCT No. T-177013 to the
Registrar of Deeds of Caloocan City who is hereby directed to effect its cancellation.

The other incidents are resolved as above indicated.

No pronouncements as to costs.

SO ORDERED. 11

Hence, the present Petition for Review on Certiorari. In addition to the factual issues raised in the
trial court, the Petition raised the following arguments:

I. The Court of Appeals went beyond the issues resolved by the trial court and formulated its
own issue regarding the date when OCT No. 994 was originally registered which it resolved
on the basis of extraneous purported evidence not presented before the trial court in the
instant case, in violation of petitioner CLT Realty' process of law.

II. The Court of Appeals perfunctorily, arbitrarily and blindly disregarded the findings of fact
and conclusions of the trial court arrived at after a careful evaluation of the evidence
presented by the parties and established on record and substituted and supplanted the same
with its own conclusions based on extraneous evidence not presented and admitted in
evidence before the trial court.

III. The Court of Appeals reversed the decision of the trial court despite the fact that
respondent Hi-Grade has failed to present evidence to refute the established fact that the
alleged titles from where its alleged titles are derived from, i.e., the alleged TCT Nos. 4211,
5261, 35486 and 1368 to 1374, contain patent and inherent technical defects and infirmities
which render them spurious, void and ineffective.

IV. The Court of Appeals unjustly made a wholesale rendition in its questioned decision
despite the pendency of important prejudicial motions or incidents which it thereby either
peremptorily resolved or rendered moot and academic, thus, violating petitioner CL T
Realty's right to due process of law.

V. The Court of Appeals totally disregarded the rules on evidence and surrendered the
independence of the judiciary by giving full faith and credence to the findings and
conclusions contained in the Senate Committee Report No. 1031 by taking judicial notice of
the same, which report was rendered pursuant to proceedings initia conducted without notice
to petitioner CL T Realty and thus in gross violation of its right to due process, and was
based on documents that were never authenticated.

VI. The Court of Appeals erroneously relied on the allegation raised in the Republic's
petitioner for intervention although the State has no legal interest in the subject matter of the
 litigation of the instant case and may not validly intervene in the instant case since the matter
in litigation are admittedly privately owned lands which will not revert to the Republic.

VII. The Court of Appeals blindly ignored the fact and worse, failed and refused to rule on the
issue that respondent Hi-Grade is guilty of forum-shopping for which reason the latter's
appeal before the Court of Appeals should have been dismissed. 12

Issues

I.

Whether or not the Court of Appeals committed a reversible error when it took judicial notice of the
Senate Report

II.

Whether or not the Court of Appeals committed a reversible error when it admitted the Office of the
Solicitor General's Petition for Intervention

III.

Which of the OCTs 994, that dated 19 April 1917 or that dated 3 May 191 7, is the valid title?

Our Ruling

First, the incidental matters.

I.

Whether or not the Court of Appeals committed a reversible error when it took judicial notice of the
Senate Report CL T avers that taking judicial notice of the Senate Report is a violation of the Rules
of Court and CLT's right to due process. First, the Senate Report is inadmissible and should not be
given any probative value because it was obtained in violation of Rule 132 of the Rules of Court,
considering that the Senate Report is unauthenticated and is thus deemed hearsay evidence.
Contrary to the mandatory procedure under Rule 132 of the Rules of Court, which requires
examination of documentary and testimonial evidence, the Senate Report was not put to proof and
CL T was deprived of the opportunity to conduct a cross-examination on the Senate Report. And it is
also contended that the right of CL T to due process was violated because the proceedings in the
Senate were conducted without notice to CLT. Finally, the admission in evidence of the Senate
Report violated the time-honored principle of separation of powers as it is an encroachment into the
jurisdiction exclusive to the courts.

CL T misses the point. Taking judicial notice of acts of the Senate is well within the ambit of the law.
Section 1 of Rule 129 of the Revised Rules on Evidence provides:

SECTION 1 . Judicial notice, when mandatory. - A court shall take judicial notice, without the
introduction of evidence, of the existence and territorial extent of states, their political history, forms
of government and symbols of nationality, the law of nations, the admiralty and maritime courts of
the world and their seals, the political constitution and history of the Philippines, the official acts of
legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of
time, and the geographical divisions. (la) (Emphasis and underscoring supplied)
Judicial notice is the cognizance of certain facts that judges may properly take and act on without
proof because these facts are already known to them;  it is the duty of the court to assume
13

something as a matter of fact without need of further evidentiary support.  Otherwise stated, by the
14

taking of judicial notice, the court dispenses with the traditional form of presentation of evidence, i.e.
the rigorous rules of evidence and court procee dm. gs sue h as cross-exami.n ati.o n. 15

The Senate Report, an official act of the legislative department, may be taken judicial notice of.

CL T posits that the Court of Appeals violated the time-honored principle of separation of powers
when it took judicial notice of the Senate Report. This contention is baseless. We adoft the
pronouncements of this Court in Angeles v. The Secretary of Justice: 16

To be sure, this Court did not merely rely on the DOJ and Senate reports regarding OCT No. 994. In
the 2007 Manotok case, this Court constituted a Special Division of the Court of Appeals to hear the
cases on remand, declaring as follows:

Since this Court is not a trier of fact[s], we are not prepared to adopt the findings made by the DOJ
and the Senate, or even consider whether these are admissible as evidence, though such questions
may be considered by the Court of Appeals upon the initiative of the parties. x x x The reports
cannot conclusively supersede or overturn judicial decisions, but if admissible they may be taken
into account as evidence on the same level as the other pieces of evidence submitted by the parties.
The fact that they were rendered by the DOJ and the Senate should not, in itself, persuade the
courts to accept them without inquiry. The facts and arguments presented in the reports must still
undergo judicial scrutiny and analysis, and certainly the courts will have the discretion to accept or
reject them.  (Emphasis and underscoring supplied)
17

Thus, the Senate Report shall not be conclusive upon the courts, but will be examined and
evaluated based on its probative value. The Court of Appeals explained quite pointedly why the
taking of judicial notice of the Senate Report does not violate the republican principle. Thus:

However, the question of the binding effect of that Report upon this Court is altogether a different
matter. Certainly, a determination by any branch of government on a justiciable matter which is
properly before this Court for adjudication does not bind the latter. The finding of the Senate
committees may be the appropriate basis for remedial legislation but when the issue of the validity of
a Torrens title is submitted to a court for resolution, only the latter has the competence to make such
a determination and once final, the same binds not only the parties but all agencies of government. 18

That there is such a document as the Senate Report was all that was conceded by the Court of
Appeals. It did not allow the Senate Report to determine the decision on the case.

II.

Whether or not the Court of Appeals committed a reversible error when it admitted the Office of the
Solicitor General's Petition for Intervention

The Republic maintains that the proliferation of spurious or fake titles covering the infamous Maysilo
Estate poses a serious threat to the integrity of the Torrens system and the Assurance Fund. The
Republic asserts that because it is bound to safeguard and protect the integrity of the Torrens
system and Assurance Fund, it is duty-bound to intervene in the present case. In granting the
intervention, the Court of Appeals ruled that considering the magnitude and significance of the
issues spawned by the Maysilo Estate, enough to affect the stability and integrity of the Torrens
system, the Republic is allowed to intervene.

CLT, on the other hand, contends that the Republic's intervention is baseless. According to CL T, the
Republic has no legal interest in the properties as the subject properties are not public lands and as
such, will not revert to the Republic. Further, there is no threat or claim against the Assurance Fund.
Anchoring on Presidential Decree No. 478 and Administrative Code of 1987, CL T claims that the
only action which the Office of the Solicitor General may file on behalf of the Republic in connection
with registered lands is an action for the reversion to the Government of lands of the public domain
and improvements thereon, as well as lands held in violation of the Constitution. 19

This time, we agree with CLT.

Intervention is only allowed before or during trial. Citing Sps. Oliva v. CA,  CLT argues that the
20

Petition for Intervention was time-barred for having been filed beyond the period prescribed in
Section 2, Rule 19 of the Rules of Court, i.e., before rendition of judgment. In Oliva, the Court
clarified that intervention is unallowable when the case has already been submitted for decision,
when judgment has been rendered, or when judgment has already became final and executory. And,
intervention is only allowed when the intervenors are indispensable parties.

Although we are cognizant of the exception that the Court may wield its power to suspend its own
rules and procedure in lieu of substantial justice and for compelling reasons,  the attendant 21

circumstances are not availing in the present case.

The Republic is not an indispensable party in the instant litigation. An indispensable party is a party-
in-interest without whom no final determination can be had of an action, and who shall be joined
either as plaintiffs or defendants.  Here, even without the Republic as participant, a final
22

determination of the issues can be attained.

Anent the opportuness of intervention, the Court held in Carino v. Ofilada  that it may be allowed
23

only before or during trial. The term trial is used in its restricted sense, i.e., the period for the
introduction of evidence by both parties. The period of trial terminates when the judgment begins. As
this case was already in its appeal stage when intervention was sought, it could no longer be
allowed.

CL T further avers that because there was no claim against the Assurance Fund, intervention is
improper. Section 95 of P.D. 1529 provides for the grounds when a party can claim against the
Assurance Fund:

Section 95. Action for compensation from funds. A person who, without negligence on his part,
sustains loss or damage, or is deprived of land or any estate or interest therein in consequence of
the bringing of the land under the operation of the Torrens system of arising after original registration
of land, through fraud or in consequence of any error, omission, mistake or misdescription in any
certificate of title or in any entry or memorandum in the registration book, and who by the provisions
of this Decree is barred or otherwise precluded under the provision of any law from bringing an
action for the recovery of such land or the estate or interest therein, may bring an action in any court
of competent jurisdiction for the recovery of damages to be paid out of the Assurance Fund.

Indeed, whatever party is favored in this case, the losing party may file a claim against the
Assurance Fund as the present case involves the operation of the Torrens system. However, the
action to claim against the Assurance Fund may be dealt with in a separate proceeding.
Now, the merits of this case.

Parenthetically, although the general rule is that the factual findings of the trial court are accorded
respect and are not generally disturbed on appeal, the aforesaid rule does not apply in the case at
bar, as the findings of the trial court and the appellate court are contradictory. 24

We shall now discuss the bottom issues.

III.

Which of the OCTs 994, that dated 19 April 1917 or that dated 3 May 1917, is the valid title?

The mother title, OCT 994

The arguments of the parties come from apparently the same document. Notably, however, the
parties' OCTs No. 994 contain different dates of registration, namely:

CLT's OCT No. 994 is dated 19 April 1917

Hi-Grade's OCT No. 994 is dated 3 May 1917

A title can only have one date of registration, as there can only be one title covering the same
property. The date of registration is reckoned from the time of the title's transcription in the record
book of the Registry of Deeds.  Therefore, the date appearing on the face of a title refers to the date
25

of issuance of the decree of registration, as provided in Sections 41and42 of the Land Registration
Act or Section 40 of the P.D. 1529:

Section 41. Immediately upon the entry of the decree of registration the clerk shall send a certified
copy thereof, under the seal of the court to the register of deeds for the province, or provinces or city
in which the land lies, and the register of deeds shall transcribe the decree in a book to be called the
"Registration Book," in which a leaf, or leaves, in consecutive order, shall be devoted exclusively to
each title. The entry made by the register of deeds in this book in each case shall be the original
certificate of title, and shall be signed by him and sealed with the seal of the court. x x x

Section 42. The certificate first registered in pursuance of the decree of registration in regard to any
parcel of land shall be entitled in the registration book, "original certificate of title, entered pursuant to
decree of the Court of Land Registration, dated at" (stating the time and place of entry of decree and
the number of case). This certificate shall take effect upon the date of the transcription of the decree.
Subsequent certificates relating to the same land shall be in like form, but shall be entitled "Transfer
from number" (the number of the next previous certificate relating to the same land), and also the
words "Originally registered" (date, volume, and page of registration). (Emphases and underscoring
supplied)

Based on Decree No. 36455 in Land Registration Case No. 4429, the decree registering OCT No.
994, the date of the issuance is 19 April 1917 while on the other hand, OCT No. 994 was received
for transcription by the Register of Deeds on 3 May 1917. In this case, the date which should be
reckoned as the date of registration of the title is the date when the mother title was received for
transcription, 3 May 1917. As correctly found by the Court of Appeals:

For sure, the very copy of OCT No. 994, presented by Appellee CL T no less and marked as its
Exhibit "D'', shows on its face that the date April 19, 191 7 refers to the issuance of the decree of
registration by the Honorable Norberto Romualdez, while May 3, 191 7 pertains to the date when the
same decree was "Received for transcription in the Office of the Register of Deeds. 26

Therefore, as the date of transcription in the record book of the Registry of Deeds is 3 May 1917, we
rule that the genuine title is the title of Hi-Grade.

The derivative title, TCT No. 4211

As correctly ruled by the Court of Appeals, CL T failed to prove by preponderance of evidence, the
alleged defects and infirmities in TCT No. 4211, the title from whence Hi-Grade's titles were derived.

CLT failed to prove that TCT No. 4211 did not conform to the registration procedures at the time it
was prepared. Contrary to the findings of the trial court, the Court cannot give credence to the
testimony of CL T's witnesses, Vasquez  and Bustalino.  Vasquez is the Deputy Register of Deeds
27 28

of Caloocan City, while Bustalino is a Geodetic Engineer. For their testimonies to matter, CL T must
first establish their competence as regards the registration rules in land registration in 1918, at the
time TCT No. 4211 was prepared. CL T failed to discharge such burden.

On CLT's allegation that the Lands Management Bureau (LMB) has no records of Psd 21154, we
note that CL T did not prove that the LMB indeed has no such records. CL T's witness, Velasquez,
merely testified that

he cannot ascertain whether or not Psd 21154 was burned or lost during the world war.  Just as29

important, while Psd 21154 could not be located, it was not only testified to that it may have been
lost or burned during the world war; a blue print copy of the same is being kept in the vault of the
Register of Deeds of Pasig City.

As regards the findings of the NBI Forensic Chemist on the age of TCT No. 4211, the Court of
Appeals correctly found that such findings are inconclusive because the Chemist did not
conclusively state that TCT No. 4211 could not have been prepared in 1918.  Also, the Chemist, in
30

her cross-examination, admitted that she did not know who supplied her copies of the TCTs and that
she has not seen any standard document dated 1918. 31

On the matter regarding the discrepancy between the dates of survey and issuance, tie points, and
language used in TCT No. 4211 and OCT No. 994, CL T's contention must fail for the obvious
reason that the basis of CLT's allegation is the non-existent mother title, OCT No. 994 dated 19 April
1917. Thus, as OCT No. 994 dated 19 April 1917 has been established as null and void, it cannot
serve as precedent for ascertaining the genuineness ofTCT No. 4211.

What matters most in this case is that CL T questioned the title of HiGrade for the purpose of having
CL T's own title upheld. Instead of establishing the genuineness of its own title, CLT attacked Hi-
Grade's titles.

However, CL T failed to establish the chain of titles linking its TCT No. T- 177013 to the mother title,
OCT No. 994. It failed to prove the "circumstances under which its predecessor-in-interest acquired
the whole of Lot 26 of the Maysilo Estate. Ironically, it is even by CL T's presentation of OCT No. 994
and of the succession of titles previous to those held by appellant Hi-Grade that the latter's titles
[was] established as genuine derivative titles of OCT No. 994." 32
Indeed, CL T's evidence must stand or fall on its own merits and cannot be allowed to draw strength
from the alleged weakness of the evidence of Hi-Grade.  As already shown, such allegation was
1avvphi1

proven wrong by documents on records.

As opposed to CLT's evidence on the alleged infirmities in HiGrade's titles, Hi-Grade presented
muniments of title, tax declarations or realty tax payments, on the subject properties.  While tax
33

declarations and receipts are inconclusive evidence of ownership or of the right to possess land,
they are prima facie proof of ownership or possession and may become the basis of a claim for
ownership when it is coupled with proof of actual possession of the property.  In the case at bar, Hi-
34

Grade is the actual possessor of the subject property. 35

To sum up, Hi-Grade was able to establish the chain of titles linking its titles, TCTs No. 237450 and
T-14691, to the derivative title, TCT No. 4211, to the mother title, OCT No. 994.  As borne by the
36

records, TCT No. 4211 was registered as a derivative title of OCT No. 994 on 9 September
1918.  On the other hand, CLT's title, TCT No. R-17994,  was registered also as a derivative title of
37 38

OCT No. 994 only on 12 September 1978. Thus, the reference of both parties is OCT No. 994, but
with different dates: CLT's OCT No. 994 is dated 19 April 1917, while Hi-Grade's OCT No. 994 is
dated 3 May 1917.

This factual issue of which OCT No. 994 is genuine is not a novel matter. This Court, in Angeles v.
The Secretary of Justice,  citing Manotok Realty, Inc. v. CLT Realty Development
39

Corporation,  exhaustively passed upon and ruled that the true and valid OCT No. 994 was dated 3
40

May 1917, not 19 April 1917.

In the recent case of Syjuco v. Republic of the Philippines,  this Court, reiterated the rulings in
41

Angeles v. The Secretary of Justice  and Manotok Realty, Inc. v. CLT Realty Development
42

Corporation, that the true and valid OCT No. 994 was registered on 3 May 1917, not on 19 April
1917, and that any title that traces its source from OCT No. 994 dated 19 April 191 7, is deemed
void and inexistent. 43

As we have priorly pronounced, any title that traces its source to a void title, is also void. The spring
cannot rise higher than its source. Nemo potest plus Juris ad alium transferre quam ipse habet. All
titles that trace its source to OCT No. 994 dated 19 April 1917, are therefore void, for such mother
title is inexistent.  CLT so traces its title to OCT No. 994 dated 19 April 191 7, the title of CL T is
44

void.
45

WHEREFORE, the petition is hereby DISMISSED. The Decision and Resolution of the Court of
Appeals in CA-G.R. CV No. 53770, entitled "CLT Realty Development Corporation v. Hi-Grade
Feeds Corporation, Register of Deeds of Metro Manila, District III " dated 18 June 2003 and 28
October 2003, respectively, are hereby AFFIRMED.

SO ORDERED.
 A.3 Meaning of life, liberty and property

1. G.R. No. L-14078            March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs,

vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.

D. R. Williams & Filemon Sotto for plaintiff.

Office of the Solicitor-General Paredes for defendant.

MALCOLM, J.:

In one of the cases which denote a landmark in American Constitutional History (Worcester vs. Georgia
[1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of American jurisprudence, began his
opinion (relating to the status of an Indian) with words which, with a slight change in phraseology, can be
made to introduce the present opinion — This cause, in every point of view in which it can be placed, is of
the deepest interest. The legislative power of state, the controlling power of the constitution and laws, the
rights if they have any, the political existence of a people, the personal liberty of a citizen, are all involved
in the subject now to be considered.

To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to introduce
the facts and the issues, next to give a history of the so called "non-Christians," next to compare the
status of the "non-Christians" with that of the American Indians, and, lastly, to resolve the constitutional
questions presented.

I. INTRODUCTION.

This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of
Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the provincial
officials of that province. Rubi and his companions are said to be held on the reservation established at
Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the provincial
sheriff in the prison at Calapan for having run away form the reservation.

The return of the Solicitor-General alleges:

1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25 which is
as follows:

The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:

"Whereas several attempts and schemes have been made for the advancement of the
non-Christian people of Mindoro, which were all a failure,

"Whereas it has been found out and proved that unless some other measure is taken for
the Mangyan work of this province, no successful result will be obtained toward educating
these people.

"Whereas it is deemed necessary to obliged them to live in one place in order to make a
permanent settlement,
 "Whereas the provincial governor of any province in which non-Christian inhabitants are
found is authorized, when such a course is deemed necessary in the interest of law and
order, to direct such inhabitants to take up their habitation on sites on unoccupied public
lands to be selected by him and approved by the provincial board.

"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake Naujan
is a place most convenient for the Mangyanes to live on, Now, therefore be it

"Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in the
sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of Mangyanes
in Mindoro subject to the approval of the Honorable Secretary of the Interior, and

"Resolved further, That Mangyans may only solicit homesteads on this reservation providing that
said homestead applications are previously recommended by the provincial governor."

2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved by
the Secretary of the Interior of February 21, 1917.

3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No. 2
which says:

"Whereas the provincial board, by Resolution No. 25, current series, has selected a site
in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes in
Mindoro.

"Whereas said resolution has been duly approve by the Honorable, the Secretary of the
Interior, on February 21, 1917.

"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the
provisions of section 2145 of the revised Administrative Code, do hereby direct that all
the Mangyans in the townships of Naujan and Pola and the Mangyans east of the Baco
River including those in the districts of Dulangan and Rubi's place in Calapan, to take up
their habitation on the site of Tigbao, Naujan Lake, not later than December 31, 1917.

"Any Mangyan who shall refuse to comply with this order shall upon conviction be
imprisoned not exceed in sixty days, in accordance with section 2759 of the revised
Administrative Code."

4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the executive
order of the governor of the same province copied in paragraph 3, were necessary measures for
the protection of the Mangyanes of Mindoro as well as the protection of public forests in which
they roam, and to introduce civilized customs among them.

5. That Rubi and those living in his rancheria have not fixed their dwelling within the reservation of
Tigbao and are liable to be punished in accordance with section 2759 of Act No. 2711.

6. That the undersigned has not information that Doroteo Dabalos is being detained by the sheriff
of Mindoro but if he is so detained it must be by virtue of the provisions of articles Nos. 2145 and
2759 of Act No. 2711.

It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the
Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake Naujan, selected
by the provincial governor and approved by the provincial board. The action was taken in accordance with
section 2145 of the Administrative Code of 1917, and was duly approved by the Secretary of the Interior
as required by said action. Petitioners, however, challenge the validity of this section of the Administrative
Code. This, therefore, becomes the paramount question which the court is called upon the decide.

Section 2145 of the Administrative Code of 1917 reads as follows:

SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. — With

the prior approval of the Department Head, the provincial governor of any province in which non-
Christian inhabitants are found is authorized, when such a course is deemed necessary in the
interest of law and order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him an approved by the provincial board.

In connection with the above-quoted provisions, there should be noted section 2759 of the same Code,
which read as follows:

SEC. 2759. Refusal of a non-Christian to take up appointed habitation. — Any non-Christian who

shall refuse to comply with the directions lawfully given by a provincial governor, pursuant to
section two thousand one hundred and forty-five of this Code, to take up habitation upon a site
designated by said governor shall upon conviction be imprisonment for a period not exceeding
sixty days.

The substance of what is now found in said section 2145 is not new to Philippine law. The genealogical
tree of this section, if we may be permitted to use such terminology, would read: Section 2077,
Administrative Code of 1916; section 62, Act No. 1397; section 2 of various special provincial laws,
notably of Act No. 547, specifically relating to the Manguianes; section 69, Act No. 387.

Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later be
disclosed, is also found in varying forms in other laws of the Philippine Islands. In order to put the phrase
in its proper category, and in order to understand the policy of the Government of the Philippine Islands
with reference to the uncivilized elements of the Islands, it is well first of all to set down a skeleton history
of the attitude assumed by the authorities towards these "non-Christians," with particular regard for the
legislation on the subject.

II. HISTORY.

A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

The most important of the laws of the Indies having reference to the subject at hand are compiled in Book
VI, Title III, in the following language.

LAW I.

The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II at
Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the Escorial on
November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo, on May 20,
1578,

THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).

In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical law,
and in order that they may forget the blunders of their ancient rites and ceremonies to the end
that they may live in harmony and in a civilized manner, it has always been endeavored, with
great care and special attention, to use all the means most convenient to the attainment of these
 purposes. To carry out this work with success, our Council of the Indies and other religious
persons met at various times; the prelates of new Spain assembled by order of Emperor Charles
V of glorious memory in the year one thousand five hundred and forty-six — all of which meetings
were actuated with a desire to serve God an our Kingdom. At these meetings it was resolved
that indios be made to live in communities, and not to live in places divided and separated from
one another by sierras and mountains, wherein they are deprived of all spiritual and temporal
benefits and wherein they cannot profit from the aid of our ministers and from that which gives
rise to those human necessities which men are obliged to give one another. Having realized that
convenience of this resolution, our kings, our predecessors, by different orders, have entrusted
and ordered the viceroys, presidents, and governors to execute with great care and moderation
the concentration of the indios into reducciones; and to deal with their doctrine with such
forbearance and gentleness, without causing inconveniences, so that those who would not
presently settle and who would see the good treatment and the protection of those already in
settlements would, of their own accord, present themselves, and it is ordained that they be not
required to pay taxes more than what is ordered. Because the above has been executed in the
greater part of our Indies, we hereby order and decree that the same be complied with in all the
remaining parts of the Indies, and the encomederos shall entreat compliance thereof in the
manner and form prescribed by the laws of this title.

xxx           xxx           xxx

LAW VIII.

Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.

THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW.

The places wherein the  pueblos and reducciones shall be formed should have the facilities of
waters. lands, and mountains, ingress and egress, husbandry and passageway of one league
long, wherein the indios can have their live stock that they may not be mixed with those of the
Spaniards.

LAW IX.

Philip II at Toledo, on February 19, 1956.

THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY HELD
BY THEM.

With more good-will and promptness, the indios shall be concentrated in reducciones. Provided

they shall not be deprived of the lands and granaries which they may have in the places left by
them. We hereby order that no change shall be made in this respect, and that they be allowed to
retain the lands held by them previously so that they may cultivate them and profit therefrom.

xxx           xxx           xxx

LAW XIII.

THE SAME AS ABOVE.

THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY, OR
COURT.
 No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to
remove the pueblos or the reducciones once constituted and founded, without our express order
or that of the viceroy, president, or the royal district court, provided, however, that
the encomenderos, priests, or indios request such a change or consent to it by offering or giving
information to that en. And, because these claims are often made for private interests and not for
those of the indios, we hereby order that this law be always complied with, otherwise the change
will be considered fraudulently obtained. The penalty of one thousand pesos shall be imposed
upon the judge or encomendero who should violate this law.

LAW XV.

Philip III at Madrid, on October 10, 1618.

THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE "INDIOS."

We order that in each town and reduccion there be a mayor, who should be an indio of the
same reduccion; if there be more than eighty houses, there should be two mayors and two
aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be more
than two mayors and four aldermen, If there be less than eighty indios but not less than forty,
there should be not more than one mayor and one alderman, who should annually elect nine
others, in the presence of the priests , as is the practice in town inhabited by Spaniards
and indios.

LAW XXI.

Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581. At
Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at Madrid, on
October 1 and December 17, 1646. For this law and the one following, see Law I, Tit. 4, Book 7.

THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES,
"MESTIZOS," AND MULATTOES.

We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in
the reducciones and towns and towns of the indios, because it has been found that some
Spaniards who deal, trade, live, and associate with the indios are men of troublesome nature, of
dirty ways of living; robbers, gamblers, and vicious and useless men; and, to avoid the wrongs
done them, the indios would leave their towns and provinces; and the negroes, mestizos, and
mulattoes, besides maltreating them and utilizing their services, contaminate them with their bad
customs, idleness, and also some of their blunders and vices which may corrupt and pervert the
goal which we desire to reach with regard to their salvation, increase, and tranquillity. We hereby
order the imposition of grave penalties upon the commission of the acts above-mentioned which
should not be tolerated in the towns, and that the viceroys, presidents, governors, and courts take
great care in executing the law within their powers and avail themselves of the cooperation of the
ministers who are truly honest. As regards the mestizos and Indian and Chinese half-breeds
(zambaigos), who are children of indias and born among them, and who are to inherit their
houses and haciendas, they all not be affected by this law, it appearing to be a harsh thing to
separate them from their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)

A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition of the
less advanced inhabitants of the Islands by concentrating them in "reducciones," is found in the Decree of
the Governor-General of the Philippine Islands of January 14, 1881, reading as follows:

It is a legal principle as well as a national right that every inhabitant of a territory recognized as an
integral part of a nation should respect and obey the laws in force therein; while, on other hand, it
 is the duty to conscience and to humanity for all governments to civilize those backward races
that might exist in the nation, and which living in the obscurity of ignorance, lack of all the nations
which enable them to grasp the moral and material advantages that may be acquired in those
towns under the protection and vigilance afforded them by the same laws.

It is equally highly depressive to our national honor to tolerate any longer the separation and
isolation of the non-Christian races from the social life of the civilized and Christian towns; to
allow any longer the commission of depredations, precisely in the Island of Luzon wherein is
located the seat of the representative of the Government of the, metropolis.

It is but just to admit the fact that all the governments have occupied themselves with this most
important question, and that much has been heretofore accomplished with the help and self-
denial of the missionary fathers who have even sacrificed their lives to the end that those
degenerate races might be brought to the principles of Christianity, but the means and the
preaching employed to allure them have been insufficient to complete the work undertaken.
Neither have the punishments imposed been sufficient in certain cases and in those which have
not been guarded against, thus giving and customs of isolation.

As it is impossible to consent to the continuation of such a lamentable state of things, taking into
account the prestige which the country demands and the inevitable duty which every government
has in enforcing respect and obedience to the national laws on the part of all who reside within
the territory under its control, I have proceeded in the premises by giving the most careful study of
this serious question which involves important interests for civilization, from the moral and
material as well as the political standpoints. After hearing the illustrious opinions of all the local
authorities, ecclesiastics, and missionaries of the provinces of Northern Luzon, and also after
finding the unanimous conformity of the meeting held with the Archbishop of Manila, the Bishops
of Jaro and Cebu, and the provincial prelates of the orders of the Dominicans, Agustinians,
Recoletos, Franciscans, and Jesuits as also of the meeting of the Council of Authorities, held for
the object so indicated, I have arrived at an intimate conviction of the inevitable necessity of
proceeding in a practical manner for the submission of the said pagan and isolated races, as well
as of the manner and the only form of accomplishing such a task.

For the reasons above stated and for the purpose of carrying out these objects, I hereby
promulgate the following:

DECREE.

1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be governed by
the common law, save those exceptions prescribed in this decree which are bases upon the
differences of instructions, of the customs, and of the necessities of the different pagan races
which occupy a part of its territory.

2. The diverse rules which should be promulgated for each of these races — which may be
divided into three classes; one, which comprises those which live isolated and roaming about
without forming a town nor a home; another, made up of those subdued pagans who have not as
yet entered completely the social life; and the third, of those mountain and rebellious pagans —
shall be published in their respective dialects, and the officials, priests, and missionaries of the
provinces wherein they are found are hereby entrusted in the work of having these races learn
these rules. These rules shall have executive character, beginning with the first day of next April,
and, as to their compliance, they must be observed in the manner prescribed below.

3. The provincial authorities in conjunction with the priests shall proceed, from now on, with all the
means which their zeal may suggest to them, to the taking of the census of the inhabitants of the
towns or settlement already subdued, and shall adopt the necessary regulations for the
appointment of local authorities, if there be none as yet; for the construction of courts and
schools, and for the opening or fixing up of means of communication, endeavoring, as regards
the administrative organization of the said towns or settlements, that this be finished before the
first day of next July, so that at the beginning of the fiscal year they shall have the same rights
and obligations which affect the remaining towns of the archipelago, with the only exception that
in the first two years they shall not be obliged to render personal services other than those
previously indicated.

4. So long as these subdued towns or settlements are located infertile lands appropriate for
cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses; and only in
case of absolute necessity shall a new residence be fixed for them, choosing for this purpose the
place most convenient for them and which prejudices the least their interest; and, in either of
these cases, an effort must be made to establish their homes with the reach of the sound of the
bell.

5. For the protection and defense of these new towns, there shall be established an armed force
composed precisely of native Christian, the organization and service of which shall be determined
in a regulations based upon that of the abolished Tercios de Policia (division of the Guardia Civil).

6. The authorities shall see to it that the inhabitants of the new towns understand all the rights
and duties affecting them and the liberty which they have as to where and now they shall till their
lands and sell the products thereof, with the only exception of the tobacco which shall be bought
by the Hacienda at the same price and conditions allowed other producers, and with the
prohibition against these new towns as well as the others from engaging in commerce of any
other transaction with the rebellious indios, the violation of which shall be punished with
deportation.

7. In order to properly carry out this express prohibition, the limits of the territory of the
rebellious indios shall be fixed; and whoever should go beyond the said limits shall be detained
and assigned governmentally wherever convenient.

8. For the purpose of assisting in the conversion of the pagans into the fraternity of the Catholic
Church, all by this fact along be exempt for eight years from rendering personal labor.

9. The authorities shall offer in the name of the State to the races not subdued (aetas and
mountains igorrots the following advantages in returns for their voluntary submission: to live in
towns; unity among their families; concession of good lands and the right to cultivate them in the
manner they wish and in the way them deem most productive; support during a year, and clothes
upon effecting submission; respect for their habits and customs in so far as the same are not
opposed to natural law; freedom to decide of their own accord as to whether they want to be
Christians or not; the establishment of missions and families of recognized honesty who shall
teach, direct, protect, and give them security and trust them; the purchase or facility of the sale of
their harvests; the exemption from contributions and tributes for ten years and from the  quintas (a
kind of tax) for twenty years; and lastly, that those who are governed by the local authorities as
the ones who elect such officials under the direct charge of the authorities of the province or
district.

10. The races indicated in the preceding article, who voluntarily admit the advantages offered,
shall, in return, have the obligation of constituting their new towns, of constructing their town hall,
schools, and country roads which place them in communication with one another and with the
Christians; provided, the location of these towns be distant from their actual residences, when the
latter do not have the good conditions of location and cultivations, and provided further the putting
of families in a place so selected by them be authorized in the towns already constituted.
 11. The armed force shall proceed to the prosecution and punishment of the tribes, that,
disregarding the peace, protection, and advantages offered them, continue in their rebellious
attitude on the first of next April, committing from now on the crimes and vexations against the
Christian towns; and for the this purposes, the Captain General's Office shall proceed with the
organization of the divisions of the Army which, in conjunction with the rural guards (cuadrilleros),
shall have to enter the territory of such tribes. On the expiration of the term, they shall destroy
their dwelling-houses, labors, and implements, and confiscate their products and cattle. Such a
punishment shall necessarily be repeated twice a year, and for this purpose the military
headquarters shall immediately order a detachment of the military staff to study the zones where
such operations shall take place and everything conducive to the successful accomplishment of
the same.

12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates to
my authorities, local authorities, and other subordinates to may authority, civil as well as military
authorities, shall give the most effective aid and cooperation to the said forces in all that is within
the attributes and the scope of the authority of each.

13. With respect to the reduccion of the pagan races found in some of the provinces in the
southern part of the Archipelago, which I intend to visit, the preceding provisions shall
conveniently be applied to them.

14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a

council or permanent commission which shall attend to and decide all the questions relative to the
application of the foregoing regulations that may be brought to it for consultations by the chiefs of
provinces and priests and missionaries.

15. The secondary provisions which may be necessary, as a complement to the foregoing, in
brining about due compliance with this decree, shall be promulgated by the respective official
centers within their respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la
Administracion, vol. 7, pp. 128-134.)

B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.

Ever since the acquisition of the Philippine Islands by the United States, the question as to the best
method for dealing with the primitive inhabitants has been a perplexing one.

1. Organic law.

The first order of an organic character after the inauguration of the American Government in the
Philippines was President McKinley's Instructions to the Commission of April 7, 1900, later expressly
approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions of
these instructions have remained undisturbed by subsequent congressional legislation. One paragraph of
particular interest should here be quoted, namely:

In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same
course followed by Congress in permitting the tribes of our North American Indians to maintain
their tribal organization and government and under which many of these tribes are now living in
peace and contentment, surrounded by civilization to which they are unable or unwilling to
conform. Such tribal governments should, however, be subjected to wise and firm regulation; and,
without undue or petty interference, constant and active effort should be exercised to prevent
barbarous practices and introduce civilized customs.

Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act for the
Philippines. The purpose of section 7 of the Philippine Bill was to provide for a legislative body and, with
this end in view, to name the prerequisites for the organization of the Philippine Assembly. The Philippine
Legislature, composed of the Philippine Commission and the Philippine Assembly, was to have
jurisdiction over the Christian portion of the Islands. The Philippine Commission was to retain exclusive
jurisdiction of that part of said Islands inhabited by Moros or other non-Christian tribes.

The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of August
29, 1916, commonly known as the Jones Law. This transferred the exclusive legislative jurisdiction and
authority theretofore exercised by the Philippine Commission, to the Philippine Legislature (sec. 12). It
divided the Philippine Islands into twelve senatorial districts, the twelfth district to be composed of the
Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu. The Governor-
General of the Philippine Islands was authorized to appoint senators and representatives for the territory
which, at the time of the passage of the Jones Law, was not represented in the Philippine Assembly, that
is, for the twelfth district (sec. 16). The law establish a bureau to be known as the "Bureau of non-
Christian Tribes" which shall have general supervision over the public affairs of the inhabitants which are
represented in the Legislature by appointed senators and representatives( sec. 22).

Philippine organic law may, therefore, be said to recognized a dividing line between the territory not
inhabited by Moros or other non-Christian tribes, and the territory which Moros or other non-Christian
tribes, and the territory which is inhabited by Moros or other non-Christian tribes.

2. Statute law.

Local governments in the Philippines have been provided for by various acts of the Philippine
Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of
Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no. 83, the Provincial Government Act; Act
No. 183, the Character of the city of Manila; Act No. 7887, providing for the organization and government
of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the Township
Government Act; Act No. 1667, relating to the organization of settlements; Act No. 1963, the Baguio
charger; and Act No. 2408, the Organic Act of the Department of Mindanao and Sulu. The major portion
of these laws have been carried forward into the Administrative Codes of 1916 an d1917.

Of more particular interest are certain special laws concerning the government of the primitive peoples.
Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United States Philippine
Commission, having reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547,
548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces of Abra, Antique,
Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya,
Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of these laws, because
referring to the Manguianes, we insert Act No. 547:

No. 547. — AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL

GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.

By authority of the United States, be it enacted by the Philippine Commission, that:

SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed
sufficiently in civilization to make it practicable to bring them under any form of municipal
government, the provincial governor is authorized, subject to the approval of the Secretary of the
Interior, in dealing with these Manguianes to appoint officers from among them, to fix their
designations and badges of office, and to prescribe their powers and duties: Provided, That the
powers and duties thus prescribed shall not be in excess of those conferred upon township
officers by Act Numbered Three hundred and eighty-seven entitled "An Act providing for the
establishment of local civil Governments in the townships and settlements of Nueva Vizcaya."
 SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is further
authorized, when he deems such a course necessary in the interest of law and order, to direct
such Manguianes to take up their habitation on sites on unoccupied public lands to be selected
by him and approved by the provincial board. Manguianes who refuse to comply with such
directions shall upon conviction be imprisonment for a period not exceeding sixty days.

SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to
acquire the knowledge and experience necessary for successful local popular government, and
his supervision and control over them shall be exercised to this end, an to the end that law and
order and individual freedom shall be maintained.

SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of Manguianes has
advanced sufficiently to make such a course practicable, it may be organized under the
provisions of sections one to sixty-seven, inclusive, of Act Numbered three hundred and eighty-
seven, as a township, and the geographical limits of such township shall be fixed by the provincial
board.

SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same is
hereby expedited in accordance with section two of 'An Act prescribing the order of procedure by
the Commission in the enactment of laws,' passed September twenty-sixth, nineteen hundred.

SEC. 6. This Act shall take effect on its passage.

Enacted, December 4, 1902.

All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and 1397.
The last named Act incorporated and embodied the provisions in general language. In turn, Act No. 1397
was repealed by the Administrative Code of 1916. The two Administrative Codes retained the provisions
in questions.

These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and
consistent practice with reference to the methods to be followed for their advancement.

C. TERMINOLOGY.

The terms made use of by these laws, organic and statutory, are found in varying forms.

"Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission.

The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words are to
be found in section 7 of the Philippine Bill and in section 22 of the Jones Law. They are also to be found
in Act No. 253 of the Philippines Commission, establishing a Bureau of non-Christian Tribes and in Act
No. 2674 of the Philippine Legislature, carried forward into sections 701-705 of the Administrative Code of
1917, reestablishing this Bureau. Among other laws which contain the phrase, there can be mentioned
Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.

"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the favorite
nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a Filipinized
legislature. These terms can be found in sections 2076, 2077, 2390, 2394, Administrative Code of 1916;
sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444,
2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine Commission.
The Administrative Code specifically provides that the term "non-Christian" shall include Mohammedans
and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative Code of 1916, taken
from Act No. 2408, sec. 3.)

D. MEANING OF TERM "NON-CHRISTIAN."

If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving to it
a religious signification. Obviously, Christian would be those who profess the Christian religion, and non-
Christians, would be those who do not profess the Christian religion. In partial corroboration of this view,
there could also be cited section 2576 of the last Administrative Code and certain well-known authorities,
as Zuñiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and
Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See Blair & Robertson, "The
Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898,"
vol. I. p. 107.)

Not content with the apparent definition of the word, we shall investigate further to ascertain what is its
true meaning.

In one sense, the word can have a geographical signification. This is plainly to be seen by the provisions
of many laws. Thus, according to the Philippine Bill, the authority of the Philippine Assembly was
recognized in the "territory" of the Islands not inhabited by Moros or other non-Christian tribes. Again, the
Jones Law confers similar recognition in the authorization of the twelfth senatorial district for the "territory
not now represented in the Philippine Assembly." The Philippines Legislature has, time and again,
adopted acts making certain other acts applicable to that "part" of the Philippine Islands inhabited by
Moros or other non-Christian tribes.

Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section of
this article, preceding section 2145, makes the provisions of the article applicable only in specially
organized provinces. The specially organized provinces are the Mountain Province, Nueva Vizcaya,
Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine Legislature has never
seen fit to give all the powers of local self-government. They do not, however, exactly coincide with the
portion of the Philippines which is not granted popular representation. Nevertheless, it is still a
geographical description.

It is well-known that within the specially organized provinces, there live persons some of who are
Christians and some of whom are not Christians. In fact, the law specifically recognizes this. ( Sec. 2422,
Administrative Code of 1917, etc.)

If the religious conception is not satisfactory, so against the geographical conception is likewise
inadquate. The reason it that the motive of the law relates not to a particular people, because of their
religion, or to a particular province because of its location, but the whole intent of the law is predicated n
the civilization or lack of civilization of the inhabitants.

At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce the
term. "The so-called non-Christian" is a favorite expression. The Secretary of the Interior who for so many
years had these people under his jurisdiction, recognizing the difficulty of selecting an exact designation,
speaks of the "backward Philippine peoples, commonly known as the 'non-Christian tribes."' (See
Hearings before the Committee on the Philippines, United States Senate, Sixty-third Congress, third
session on H.R. 18459, An Act to declare the purpose of the People of the United States as to the future
political status of the Philippine Islands and to provide a more autonomous government for the Islands,
pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906, circulated by the Executive
Secretary.)
The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated by
reference to legislative, judicial, and executive authority.

The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et seq,
and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253 charged the
Bureau of non-Christian tribes to conduct "systematic investigations with reference to non-Christian
tribes . . . with special view to determining the most practicable means for bringing about their
advancement in civilization and material property prosperity."

As authority of a judicial nature is the decision of the Supreme Court in the case of United
States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a tribal
marriage in connection with article 423 of the Penal code concerning the husband who surprises his wife
in the act of adultery. In discussing the point, the court makes use of the following language:

. . . we are not advised of any provision of law which recognizes as legal a tribal marriage of  so-
called non-Christians or members of uncivilized tribes, celebrated within that province without
compliance with the requisites prescribed by General Orders no. 68. . . . We hold also that the
fact that the accused is shown to be a member of an uncivilized tribe, of a low order of
intelligence, uncultured and uneducated, should be taken into consideration as a second marked
extenuating circumstance.

Of much more moment is the uniform construction of execution officials who have been called upon to
interpret and enforce the law. The official who, as a member of the Philippine Commission, drafted much
of the legislation relating to the so-called Christians and who had these people under his authority, was
the former Secretary of the Interior. Under date of June 30, 1906, this official addressed a letter to all
governor of provinces, organized under the Special Provincial Government Act, a letter which later
received recognition by the Governor-General and was circulated by the Executive Secretary, reading as
follows:

Sir: Within the past few months, the question has arisen as to whether people who were originally
non-Christian but have recently been baptized or who are children of persons who have been
recently baptized are, for the purposes of Act 1396 and 1397, to be considered Christian or non-
Christians.

It has been extremely difficult, in framing legislation for the tribes in these islands which are not
advanced far in civilization, to hit upon any suitable designation which will fit all cases. The
number of individual tribes is so great that it is almost out of the question to enumerate all of them
in an Act. It was finally decided to adopt the designation 'non-Christians' as the one most
satisfactory, but the real purpose of the Commission was not so much to legislate for people
having any particular religious belief as for those lacking sufficient advancement so that they
could, to their own advantage, be brought under the Provincial Government Act and the
Municipal Code.

The mere act of baptism does not, of course, in itself change the degree of civilization to which
the person baptized has attained at the time the act of baptism is performed. For practical
purposes, therefore, you will give the member of so-called "wild tribes" of your province the
benefit of the doubt even though they may recently have embraced Christianity.

The determining factor in deciding whether they are to be allowed to remain under the jurisdiction
of regularly organized municipalities or what form of government shall be afforded to them should
be the degree of civilization to which they have attained and you are requested to govern yourself
accordingly.
 I have discussed this matter with the Honorable, the Governor-General, who concurs in the
opinion above expressed and who will have the necessary instructions given to the governors of
the provinces organized under the Provincial Government Act. (Internal Revenue Manual, p.
214.)

The present Secretary of the Interior, in a memorandum furnished a member of this court, has the
following to say on the subject:

As far as names are concerned the classification is indeed unfortunate, but while no other better
classification has as yet been made the present classification should be allowed to stand . . . I
believe the term carries the same meaning as the expressed in the letter of the Secretary of the
Interior (of June 30, 1906, herein quoted). It is indicative of the degree of civilization rather than of
religious denomination, for the hold that it is indicative of religious denomination will make the law
invalid as against that Constitutional guaranty of religious freedom.

Another official who was concerned with the status of the non-Christians, was the Collector of Internal
Revenue. The question arose for ruling relatives to the cedula taxation of the Manobos and the Aetas.
Thereupon, the view of the Secretary of the Interior was requested on the point, who, by return
indorsement, agreed with the interpretation of the Collector of Internal Revenue. This Construction of the
Collector of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal Revenue,
dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214):

The internal revenue law exempts "members of non-Christian tribes" from the payment of cedula
taxes. The Collector of Internal Revenue has interpreted this provision of law to mean not that
persons who profess some form of Christian worship are alone subject to the cedula tax, and that
all other person are exempt; he has interpreted it to mean that all persons preserving tribal
relations with the so-called non-Christian tribes are exempt from the cedula tax, and that all
others, including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax so long
as they live in cities or towns, or in the country in a civilized condition. In other words, it is not so
much a matter of a man's form of religious worship or profession that decides whether or not he is
subject to the cedula tax; it is more dependent on whether he is living in a civilized manner or is
associated with the mountain tribes, either as a member thereof or as a recruit. So far, this
question has not come up as to whether a Christian, maintaining his religious belief, but throwing
his lot and living with a non-Christian tribe, would or would not be subject to the cedula tax. On
one occasion a prominent Hebrew of Manila claimed to this office that he was exempt from the
cedula tax, inasmuch as he was not a Christian. This Office, however, continued to collect cedula
taxes from all the Jews, East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large
proportion of the cedula taxes paid in this city are paid by men belonging to the nationalities
mentioned. Chinamen, Arabs and other s are quite widely scattered throughout the Islands, and a
condition similar to that which exist in Manila also exists in most of the large provincial towns.
Cedula taxes are therefore being collected by this Office in all parts of these Islands on the broad
ground that civilized people are subject to such taxes, and non-civilized people preserving their
tribal relations are not subject thereto.

(Sgd.) JNO. S. HORD,

Collector of Internal Revenue.

On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327, approved by
the Secretary of Finance and Justice, to all provincial treasurers. This letter in part reads:

In view of the many questions that have been raised by provincial treasurers regarding cedula
taxes due from members of non-Christian tribes when they come in from the hills for the purposes
of settling down and becoming members of the body politic of the Philippine Islands, the following
 clarification of the laws governing such questions and digest of rulings thereunder is hereby
published for the information of all concerned:

Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact that
they do not profess Christianity, but because of their uncivilized mode of life and low state of
development. All inhabitants of the Philippine Islands classed as members of non-Christian tribes
may be divided into three classes in so far as the cedula tax law is concerned . . .

Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life,
severs whatever tribal relations he may have had and attaches himself civilized community,
belonging a member of the body politic, he thereby makes himself subject to precisely the same
law that governs the other members of that community and from and after the date when he so
attaches himself to the community the same cedula and other taxes are due from him as from
other members thereof. If he comes in after the expiration of the delinquency period the same
rule should apply to him as to persons arriving from foreign countries or reaching the age of
eighteen subsequent to the expiration of such period, and a regular class A, D, F, or H cedula, as
the case may be, should be furnished him without penalty and without requiring him to pay the tax
for former years.

In conclusion, it should be borne in mind that the prime factors in determining whether or not a
man is subject to the regular cedula tax is not the circumstance that he does or does not profess
Christianity, nor even his maintenance of or failure to maintain tribal relations with some of the
well known wild tribes, but his mode of life, degree of advancement in civilization and connection
or lack of connection with some civilized community. For this reason so called "Remontados" and
"Montescos" will be classed by this office as members of non-Christian tribes in so far as the
application of the Internal Revenue Law is concerned, since, even though they belong to no well
recognized tribe, their mode of life, degree of advancement and so forth are practically the same
as those of the Igorrots and members of other recognized non-Christina tribes.

Very respectfully,

(Sgd.) ELLIS CROMWELL,

Collector of Internal Revenue,

Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.

The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations No.
1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on April 16,
1915, by Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the regulations is
practically a transcript of Circular Letter No. 327.

The subject has come before the Attorney-General for consideration. The Chief of Constabulary request
the opinion of the Attorney-General as to the status of a non-Christian who has been baptized by a
minister of the Gospel. The precise questions were these: "Does he remain non-Christian or is he entitled
to the privileges of a Christian? By purchasing intoxicating liquors, does he commit an infraction of the law
and does the person selling same lay himself liable under the provision of Act No. 1639?" The opinion of
Attorney-General Avanceña, after quoting the same authorities hereinbefore set out, concludes:

In conformity with the above quoted constructions, it is probable that is probable that the person
in question remains a non-Christian, so that, in purchasing intoxicating liquors both he and the
person selling the same make themselves liable to prosecution under the provisions of Act No.
 1639. At least, I advise you that these should be the constructions place upon the law until a court
shall hold otherwise.

Solicitor-General Paredes in his brief in this case says:

With respect to the meaning which the phrase non-Christian inhabitants has in the provisions of
the Administrative code which we are studying, we submit that said phrase does not have its
natural meaning which would include all non-Christian inhabitants of the Islands, whether Filipino
or strangers, civilized or uncivilized, but simply refers to those uncivilized members of the non-
Christian tribes of the Philippines who, living without home or fixed residence, roam in the
mountains, beyond the reach of law and order . . .

The Philippine Commission in denominating in its laws that portion of the inhabitants of the
Philippines which live in tribes as non-Christian tribes, as distinguished from the common
Filipinos which carry on a social and civilized life, did not intended to establish a distinction based
on the religious beliefs of the individual, but, without dwelling on the difficulties which later would
be occasioned by the phrase, adopted the expression which the Spanish legislation employed to
designate the uncivilized portion of the inhabitants of the Philippines.

The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act No.
2657 (articles 2145 and 2759) should be understood as equivalent to members of uncivilized
tribes of the Philippines, not only because this is the evident intention of the law, but because to
give it its lateral meaning would make the law null and unconstitutional as making distinctions
base the religion of the individual.

The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows, then
"Chief of the Bureau of non-Christian Tribes," divides the population in the Christian or Civilized Tribes,
and non-Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The
present Director of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used in the
Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer and
Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular Affairs, War
Department, a sub-division under the title non-Christian tribes is, "Physical and Political Characteristics of
the non-Christian Tribes," which sufficiently shows that the terms refers to culture and not to religion.

In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials,
specifically, join in the proposition that the term "non-Christian" refers, not to religious belief, but, in a
way , to geographical area, and, more directly, to natives of the Philippine Islands of a law grade of
civilization, usually living in tribal relationship apart from settled communities.

E. THE MANGUIANES.

The so-called non-Christians are in various state approaching civilization. The Philippine Census of 1903
divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of Mindoro.

Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres de
Rozas de Filipinas, says:

In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro." It
may be that the use of this word is applicable to a great number of Filipinos, but nevertheless it
has been applied only to certain inhabitants of Mindoro. Even in primitive times without doubt this
name was given to those of that island who bear it to-day, but its employed in three Filipino
languages shows that the radical ngian  had in all these languages a sense to-day forgotten. In
Pampango this ending still exists and signifies "ancient," from which we can deduce that the
name was applied to men considered to be the ancient inhabitants, and that these men were
 pushed back into the interior by the modern invaders, in whose language they were called the
"ancients."

The Manguianes are very low in culture. They have considerable Negrito blood and have not advanced
beyond the Negritos in civilization. They are a peaceful, timid, primitive, semi-nomadic people. They
number approximately 15,000. The manguianes have shown no desire for community life, and, as
indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization to make it
practicable to bring them under any form of municipal government. (See Census of the Philippine (Islands
[1903], vol. I, pp. 22, 23, 460.)

III. COMPARATIVE — THE AMERICAN INDIANS.

Reference was made in the Presidents' instructions to the Commission to the policy adopted by the
United States for the Indian Tribes. The methods followed by the Government of the Philippines Islands in
its dealings with the so-called non-Christian people is said, on argument, to be practically identical with
that followed by the United States Government in its dealings with the Indian tribes. Valuable lessons, it is
insisted, can be derived by an investigation of the American-Indian policy.

From the beginning of the United States, and even before, the Indians have been treated as "in a state of
pupilage." The recognized relation between the Government of the United States and the Indians may be
described as that of guardian and ward. It is for the Congress to determine when and how the
guardianship shall be terminated. The Indians are always subject to the plenary authority of the United
States.

Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the
Congress passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring
Indians." After quoting the Act, the opinion goes on — "This act avowedly contemplates the preservation
of the Indian nations as an object sought by the United States, and proposes to effect this object by
civilizing and converting them from hunters into agriculturists."

A leading case which discusses the status of the Indians is that of the United States  vs. Kagama ([1886],
118 U.S., 375). Reference is herein made to the clause of the United States Constitution which gives
Congress "power to regulate commerce with foreign nations, and among the several States, and with the
Indian tribes." The court then proceeds to indicate a brief history of the position of the Indians in the
United States (a more extended account of which can be found in Marshall's opinion in
Worcester vs. Georgia, supra), as follows:

The relation of the Indian tribes living within the borders of the United States, both before and
since the Revolution, to the people of the United States, has always been an anomalous one and
of a complex character.

Following the policy of the European Governments in the discovery of American towards the
Indians who were found here, the colonies before the Revolution and the States and the United
States since, have recognized in the Indians a possessory right to the soil over which they
roamed and hunted and established occasional villages. But they asserted an ultimate title in the
land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or
peoples without the consent of this paramount authority. When a tribe wished to dispose of its
lands, or any part of it, or the State or the United States wished to purchase it, a treaty with the
tribe was the only mode in which this could be done. The United States recognized no right in
private persons, or in other nations, to make such a purchase by treaty or otherwise. With the
Indians themselves these relation are equally difficult to define. They were, and always have
been, regarded as having a semi-independent position when they preserved their tribal relations;
not as States, not as nation not a possessed of the fall attributes of sovereignty, but as a separate
 people, with the power of regulating their internal and social relations, and thus far not brought
under the laws of the Union or of the State within whose limits they resided.

The opinion then continues:

It seems to us that this (effect of the law) is within the competency of Congress. These Indian
tribes are  the wards of the nation. The are communities dependent  on the United States.
dependent largely for their daily food. Dependent for their political rights. They owe no allegiance
to the States, and receive from the no protection. Because of the local ill feeling, the people of the
States where they are found are often their deadliest enemies. From their very weakness and
helplessness, so largely due to the course of dealing of the Federal Government with them and
the treaties in which it has been promised, there arise the duty of protection, and with it the
power. This has always been recognized by the Executive and by Congress, and by this court,
whenever the question has arisen . . . The power of the General Government over these
remnants of race once powerful, now weak and diminished in numbers, is necessary to their
protection, as well as to the safety of those among whom they dwell. it must exist in that
government, because it never has existed anywhere else, because the theater of its exercise is
within the geographical limits of the United States, because it has never been denied, and
because it alone can enforce its laws on all the tribes.

In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered was
whether the status of the Pueblo Indians and their lands was such that Congress could prohibit the
introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico to
statehood. The court looked to the reports of the different superintendent charged with guarding their
interests and founds that these Indians are dependent upon the fostering care and protection of the
government "like reservation Indians in general." Continuing, the court said "that during the Spanish
dominion, the Indians of the pueblos  were treated as wards requiring special protection, where subjected
to restraints and official supervisions in the alienation of their property." And finally, we not the following:
"Not only does the Constitution expressly authorize Congress to regulate commerce with the Indians
tribes, but long-continued legislative and executive usage and an unbroken current of judicial decisions
have attributed to the United States as a superior and civilized nation the power and the duty of exercising
a fostering care and protection over all dependent Indian communities within its borders, whether within
its original territory or territory subsequently acquired, and whether within or without the limits of a state."

With reference to laws affecting the Indians, it has been held that it is not within the power of the courts to
overrule the judgment of Congress. For very good reason, the subject has always been deemed political
in nature, not subject to the jurisdiction of the judicial department of the government. (Matter of Heff
[1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra;
Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871], 11
Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay [1898], 169 U.S.., 264; Lone
Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger
[1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S..,
598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the United States
sets apart any public land as an Indian reservation, it has full authority to pass such laws and authorize
such measures as may be necessary to give to the Indians thereon full protection in their persons and
property. (U.S. vs. Thomas [1894], 151 U.S., 577.)

All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial
decisions.

The only case which is even remotely in point and which, if followed literally, might result in the issuance
of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This was a hearing
upon return to a writ of habeas corpus issued against Brigadier General George Crook at the relation of
Standing Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged in
substance that the relators are Indians who have formerly belonged to the Ponca tribe of Indians, now
located in the Indian Territory; that they had some time previously withdrawn from the tribe, and
completely severed their tribal relations therewith, and had adopted the general habits of the whites, and
were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from
the general government; that whilst they were thus engaged, and without being guilty of violating any of
the laws of the United States, they were arrested and restrained of their liberty by order of the respondent,
George Crook. The substance of the return to the writ was that the relators are individual members of,
and connected with, the Ponca tribe of Indians; that they had fled or escaped form a reservation situated
some place within the limits of the Indian Territory — had departed therefrom without permission from the
Government; and, at the request of the Secretary of the Interior, the General of the Army had issued an
order which required the respondent to arrest and return the relators to their tribe in the Indian Territory,
and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian
Territory.

The first question was whether an Indian can test the validity of an illegal imprisonment by habeas corpus.
The second question, of much greater importance, related to the right of the Government to arrest and
hold the relators for a time, for the purpose of being returned to the Indian Territory from which it was
alleged the Indian escaped. In discussing this question, the court reviewed the policy the Government had
adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the court said: "Laws passed
for the government of the Indian country, and for the purpose of regulating trade and intercourse with the
Indian tribes, confer upon certain officers of the Government almost unlimited power over the persons
who go upon the reservations without lawful authority . . . Whether such an extensive discretionary power
is wisely vested in the commissioner of Indian affairs or not , need not be questioned. It is enough to know
that the power rightfully exists, and, where existing, the exercise of the power must be upheld." The
decision concluded as follows:

The reasoning advanced in support of my views, leads me to conclude:

1. that an Indian is a 'person' within the meaning of the laws of the United States, and has,
therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal judge,
in all cases where he may be confined or in custody under color of authority of the United States
or where he is restrained of liberty in violation of the constitution or laws of the United States.

2. That General George Crook, the respondent, being commander of the military department of
the Platte, has the custody of the relators, under color of authority of the United States, and in
violation of the laws therefore.

3. That n rightful authority exists for removing by force any of the relators to the Indian Territory,
as the respondent has been directed to do.

4. that the Indians possess the inherent right of expatriation, as well as the more fortunate white
race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so long as they
obey the laws and do not trespass on forbidden ground. And,

5. Being restrained of liberty under color of authority of the United States, and in violation of the
laws thereof, the relators must be discharged from custody, and it is so ordered.

As far as the first point is concerned, the decision just quoted could be used as authority to determine that
Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a "person" within the
meaning of the Habeas Corpus Act, and as such, entitled to sue out a writ in the Philippine courts. (See
also In re Race Horse [1895], 70 Fed., 598.) We so decide.

As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical. But
even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United
States, that Indians have been taken from different parts of the country and placed on these reservation,
without any previous consultation as to their own wishes, and that, when once so located, they have been
made to remain on the reservation for their own good and for the general good of the country. If any
lesson can be drawn form the Indian policy of the United States, it is that the determination of this policy is
for the legislative and executive branches of the government and that when once so decided upon, the
courts should not interfere to upset a carefully planned governmental system. Perhaps, just as may
forceful reasons exists for the segregation as existed for the segregation of the different Indian tribes in
the United States.

IV. CONSTITUTIONAL QUESTIONS.

A. DELEGATION OF LEGISLATIVE POWER.

The first constitutional objection which confronts us is that the Legislature could not delegate this power to
provincial authorities. In so attempting, it is contended, the Philippine Legislature has abdicated its
authority and avoided its full responsibility.

That the maxim of Constitutional Law forbidding the delegation of legislative power should be zealously
protected, we agree. An understanding of the rule will, however, disclose that it has not bee violated in his
instance.

The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and
since followed in a multitude of case, namely: "The true distinction therefore is between the delegation of
power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the later no valid objection can be made." (Cincinnati, W. & Z. R. Co.  vs. Comm'rs.
Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall in
Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an executive
department or official. The Legislature may make decisions of executive departments of subordinate
official thereof, to whom t has committed the execution of certain acts, final on questions of fact.
(U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give prominence to
the "necessity" of the case.

Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section 21454
of the Administrative Code? Has not the Legislature merely conferred upon the provincial governor, with
the approval of the provincial board and the Department Head, discretionary authority as to the execution
of the law? Is not this "necessary"?

The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the
Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by the relator
out of the lands ceded to the United States by the Wichita and affiliated bands of Indians. Section 463 of
the United States Revised Statutes provided: "The Commissioner of Indian Affairs shall, under the
direction of the Secretary of the Interior, and agreeably to such regulations as the President may
prescribe, have the management of all Indian affairs, and of all matters arising out to the Indian relations."
Justice Holmes said: "We should hesitate a good deal, especially in view of the long established practice
of the Department, before saying that this language was not broad enough to warrant a regulation
obviously made for the welfare of the rather helpless people concerned. The power of Congress is not
doubted. The Indians have been treated as wards of the nation. Some such supervision was necessary,
and has been exercised. In the absence of special provisions naturally it would be exercised by the Indian
Department." (See also as corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204
U.S.., 364, reviewing the previous decisions of the United States Supreme Court: U.S. vs. Lane [1914],
232 U.S., 598.)

There is another aspect of the question, which once accepted, is decisive. An exception to the general
rule. sanctioned by immemorial practice, permits the central legislative body to delegate legislative
powers to local authorities. The Philippine Legislature has here conferred authority upon the Province of
Mindoro, to be exercised by the provincial governor and the provincial board.

Who but the provincial governor and the provincial board, as the official representatives of the province,
are better qualified to judge "when such as course is deemed necessary in the interest of law and order?"
As officials charged with the administration of the province and the protection of its inhabitants, who but
they are better fitted to select sites which have the conditions most favorable for improving the people
who have the misfortune of being in a backward state?

Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by the
Philippine Legislature to provincial official and a department head.

B. RELIGIOUS DISCRIMINATION

The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his unknown
clients, says that — "The statute is perfectly clear and unambiguous. In limpid English, and in words as
plain and unequivocal as language can express, it provides for the segregation of 'non-Christians' and
none other." The inevitable result, them, is that the law "constitutes an attempt by the Legislature to
discriminate between individuals because of their religious beliefs, and is, consequently, unconstitutional."

Counsel's premise once being conceded, his arguments is answerable — the Legislature must be
understood to mean what it has plainly expressed; judicial construction is then excluded; religious equality
is demanded by the Organic Law; the statute has violated this constitutional guaranty, and Q. E. D. is
invalid. But, as hereinbefore stated, we do not feel free to discard the long continued meaning given to a
common expression, especially as classification of inhabitants according to religious belief leads the court
to what it should avoid, the nullification of legislative action. We hold that the term "non-Christian" refers to
natives of the Philippines Islands of a low grade of civilization, and that section 2145 of the Administrative
Code of 1917, does not discriminate between individuals an account of religious differences.

C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.

The third constitutional argument is grounded on those portions of the President's instructions of to the
Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in said
Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to
any person therein the equal protection of the laws." This constitutional limitation is derived from the
Fourteenth Amendment to the United States Constitution — and these provisions, it has been said "are
universal in their application, to all persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection
afforded the individual is then as much for the non-Christian as for the Christian.

The conception of civil liberty has been variously expressed thus:

Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of
like liberty by every other. (Spencer, Social Statistics, p. 94.)

Liberty is the creature of law, essentially different from that authorized licentiousness that
trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and a
refined idea, the offspring of high civilization, which the savage never understood, and never can
understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to
keep off from us, the more liberty we have . . . that man is free who is protected from injury. (II
Webster's Works, p. 393.)
 Liberty consists in the ability to do what one caught to desire and in not being forced to do what
one ought not do desire. (Montesque, spirit of the Laws.)

Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's own
will. It is only freedom from restraint under conditions essential to the equal enjoyment of the
same right by others. (Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.)

Liberty does not import "an absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold restraints to which every person is
necessarily subject for the common good. On any other basis, organized society could not exist
with safety to its members. Society based on the rule that each one is a law unto himself would
soon be confronted with disorder and anarchy. Real liberty for all could not exist under the
operation of a principle which recognizes the right of each individual person to use his own,
whether in respect of his person or his property, regardless of the injury that may be done to
others . . . There is, of course, a sphere with which the individual may asserts the supremacy of
his own will, and rightfully dispute the authority of any human government — especially of any
free government existing under a written Constitution — to interfere with the exercise of that will.
But it is equally true that in very well-ordered society charged with the duty of conserving the
safety of its members, the rights of the individual in respect of his liberty may at times, under the
pressure of great dangers, be subjected to such restraint to be enforced by reasonable
regulations, as the safety of the general public may demand." (Harlan, J., In
Jacobson vs. Massachusetts [1905] 197 U.S., 11.)

Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and
honorable conscience of the individual. (Apolinario Mabini.)

Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized
community, consistently with the peaceful enjoyment of like freedom in others. The right to Liberty
guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary personal
restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person
of the citizen, but is deemed to embrace the right of man to enjoy the faculties with which he has been
endowed by this Creator, subject only to such restraints as are necessary for the common welfare. As
enunciated in a long array of authorities including epoch-making decisions of the United States Supreme
Court, Liberty includes the right of the citizens to be free to use his faculties in all lawful ways; to live an
work where he will; to earn his livelihood by an lawful calling; to pursue any avocations, an for that
purpose. to enter into all contracts which may be proper, necessary, and essential to his carrying out
these purposes to a successful conclusion. The chief elements of the guaranty are the right to contract,
the right to choose one's employment, the right to labor, and the right of locomotion.

In general, it may be said that Liberty means the opportunity to do those things which are ordinarily done
by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland
[1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S.,
578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.)

One thought which runs through all these different conceptions of Liberty is plainly apparent. It is this:
"Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." Implied in the term
is restraint by law for the good of the individual and for the greater good of the peace and order of society
and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled
license. The right of the individual is necessarily subject to reasonable restraint by general law for the
common good. Whenever and wherever the natural rights of citizen would, if exercises without restraint,
deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the
regulation of law. The Liberty of the citizens may be restrained in the interest of the public health, or of the
public order and safety, or otherwise within the proper scope of the police power. (See Hall  vs. Geiger-
Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in the
course of the argument in the Dartmouth College Case before the United States Supreme Court, since a
classic in forensic literature, said that the meaning of "due process of law" is, that "every citizen shall hold
his life, liberty, property, an immunities under the protection of the general rules which govern society." To
constitute "due process of law," as has been often held, a judicial proceeding is not always necessary. In
some instances, even a hearing and notice are not requisite a rule which is especially true where much
must be left to the discretion of the administrative officers in applying a law to particular cases. (See
McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of liberty.
"Any legal proceeding enforced by public authority, whether sanctioned by age and customs, or newly
devised in the discretion of the legislative power, in furtherance of the public good, which regards and
preserves these principles of liberty and justice, must be held to be due process of law."
(Hurtado vs. California [1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there
shall be a law prescribed in harmony with the general powers of the legislative department of the
Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced
according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all
the citizens of the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal
to the United States Supreme Court. 1) "What is due process of law depends on circumstances. It varies
with the subject-matter and necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.)

The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute
which is applicable to all of a class. The classification must have a reasonable basis and cannot be purely
arbitrary in nature.

We break off with the foregoing statement, leaving the logical deductions to be made later on.

D. SLAVERY AND INVOLUNTARY SERVITUDE.

The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United States
Constitution particularly as found in those portions of Philippine Organic Law providing "That slavery shall
not exist in said Islands; nor shall involuntary servitude exist except as a punishment for crime whereof
the party shall have been duly convicted." It is quite possible that the Thirteenth Amendment, since
reaching to "any place subject to" the "jurisdiction" of the United States, has force in the Philippine.
However this may be, the Philippine Legislature has, by adoption, with necessary modifications, of
sections 268 to 271 inclusive of the United States Criminal Code, prescribed the punishment for these
crimes. Slavery and involuntary servitude, together wit their corollary, peonage, all denote "a condition of
enforced, compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The term of
broadest scope is possibly involuntary servitude. It has been applied to any servitude in fact involuntary,
no matter under what form such servitude may have been disguised. (Bailey vs. Alabama [1910], 219
U.S., 219.)

So much for an analysis of those constitutional provisions on which petitioners rely for their freedom. Next
must come a description of the police power under which the State must act if section 2145 is to be held
valid.

E. THE POLICE POWER.

Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is the
farreaching scope of the power, that it has become almost possible to limit its weep, and that among its
purposes is the power to prescribe regulations to promote the health, peace, morals, education, and good
order of the people, and to legislate so as to increase the industries of the State, develop its resources
and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not
interested in is the right of the government to restrain liberty by the exercise of the police power.
"The police power of the State," one court has said, . . . "is a power coextensive with self-protection, and
is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and plenary power
in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society."
(Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation,
the judiciary rarely attempt to dam the on rushing power of legislative discretion, provided the purposes of
the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily
interfere with the right of the individual.

The Government of the Philippine Islands has both on reason and authority the right to exercise the
sovereign police power in the promotion of the general welfare and the public interest. "There can be not
doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and
that this power is limited only by the Acts of Congress and those fundamental principles which lie at the
foundation of all republican forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580;
U.S. vs. Pompeya [1915], 31 Phil., 245.)

With the foregoing approximation of the applicable basic principles before us, before finally deciding
whether any constitutional provision has indeed been violated by section 2145 of the Administrative Code,
we should endeavor to ascertain the intention of the Legislature in enacting this section. If legally
possible, such legislative intention should be effectuated.

F. LEGISLATIVE INTENT.

The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao reservation,
it will be remembered, assigned as reasons fort the action, the following: (1) The failure of former
attempts for the advancement of the non-Christian people of the province; and (2) the only successfully
method for educating the Manguianes was to oblige them to live in a permanent settlement. The Solicitor-
General adds the following; (3) The protection of the Manguianes; (4) the protection of the public forests
in which they roam; (5) the necessity of introducing civilized customs among the Manguianes.

The present Secretary of the Interior says of the Tigbao reservation and of the motives for its selection,
the following:

To inform himself of the conditions of those Manguianes who were taken together to Tigbao, the
Secretary of the Interior on June 10 to 13, 1918, made a trip to the place. There he found that the
site selected is a good one; that creditable progress has been made in the clearing of forests,
construction of buildings, etc., that there appears to be encouraging reaction by the boys to the
work of the school the requirements of which they appear to meet with enthusiastic interest after
the first weeks which are necessarily a somewhat trying period for children wholly unaccustomed
to orderly behaviour and habit of life. He also gathered the impression that the results obtained
during the period of less than one year since the beginning of the institution definitely justify its
continuance and development.

Of course, there were many who were protesting against that segregation. Such was naturally to
be expected. But the Secretary of the Interior, upon his return to Manila, made the following
statement to the press:

"It is not deemed wise to abandon the present policy over those who prefer to live a
nomadic life and evade the influence of civilization. The Government will follow its policy
to organize them into political communities and to educate their children with the object of
making them useful citizens of this country. To permit them to live a wayfaring life will
ultimately result in a burden to the state and on account of their ignorance, they will
commit crimes and make depredation, or if not they will be subject to involuntary
servitude by those who may want to abuse them."
The Secretary of the Interior, who is the official charged with the supervision of all the non-Christian
people, has adopted as the polaris of his administration — "the advancement of the non-Christian
elements of our population to equality and unification with the highly civilized Christian inhabitants." This
is carried on by the adoption of the following measures:

(a) Pursuance of the closer settlement policy whereby people of seminomadic race are induced to
leave their wild habitat and settle in organized communities.

(b) The extension of the public school system and the system of public health throughout the
regions inhabited by the non-Christian people.

(c) The extention of public works throughout the Mohammedan regions to facilitate their
development and the extention of government control.

(d) Construction of roads and trials between one place and another among non-Christians, to
promote social and commercial intercourse and maintain amicable relations among them and
with the Christian people.

(e) Pursuance of the development of natural economic resources, especially agriculture.

( f  ) The encouragement of immigration into, and of the investment of private capital in, the fertile
regions of Mindanao and Sulu.

The Secretary adds:

To attain the end desired, work of a civilizing influence have been continued among the non-
Christian people. These people are being taught and guided to improve their living conditions in
order that they may fully appreciate the benefits of civilization. Those of them who are still given
to nomadic habits are being persuaded to abandon their wild habitat and settle in organized
settlements. They are being made to understand that it is the purpose of the Government to
organize them politically into fixed and per manent communities, thus bringing them under the
control of the Government, to aid them to live and work, protect them from involuntary servitude
and abuse, educate their children, and show them the advantages of leading a civilized life with
their civilized brothers. In short, they are being impressed with the purposes and objectives of the
Government of leading them to economic, social, and political equality, and unification with the
more highly civilized inhabitants of the country. (See Report of the Department for 1917.)

The fundamental objective of governmental policy is to establish friendly relations with the so-called non-
Christians, and to promote their educational, agricultural, industrial, and economic development and
advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the
Bureau of non-Christian Tribes, defines the aim of the Government towards the non-Christian people in
the following unequivocal terms:

It shall be the duty of the Bureau of non-Christian Tribes to continue the work for advancement
and liberty in favor of the region inhabited by non-Christian Filipinos and foster by all adequate
means and in a systematical, rapid, and complete manner the moral, material, economic, social,
and political development of those regions, always having in view the aim of rendering permanent
the mutual intelligence between, and complete fusion of, all the Christian and non-Christian
elements populating the provinces of the Archipelago. (Sec. 3.)

May the Manguianes not be considered, as are the Indians in the United States, proper wards of the
Filipino people? By the fostering care of a wise Government, may not these unfortunates advance in the
"habits and arts of civilization?" Would it be advisable for the courts to intrude upon a plan, carefully
formulated, and apparently working out for the ultimate good of these people?

In so far as the Manguianes themselves are concerned, the purpose of the Government is evident. Here,
we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making depredations on their
more fortunate neighbors, uneducated in the ways of civilization, and doing nothing for the advancement
of the Philippine Islands. What the Government wished to do by bringing than into a reservation was to
gather together the children for educational purposes, and to improve the health and morals — was in
fine, to begin the process of civilization. this method was termed in Spanish times, "bringing under the
bells." The same idea adapted to the existing situation, has been followed with reference to the
Manguianes and other peoples of the same class, because it required, if they are to be improved, that
they be gathered together. On these few reservations there live under restraint in some cases, and in
other instances voluntarily, a few thousands of the uncivilized people. Segregation really constitutes
protection for the manguianes.

Theoretically, one may assert that all men are created free and equal. Practically, we know that the axiom
is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are free, and they
are not the equals of their more fortunate brothers. True, indeed, they are citizens, with many but not all
the rights which citizenship implies. And true, indeed, they are Filipinos. But just as surely, the
Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon the progress
of the State.

In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in
enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro must
have their crops and persons protected from predatory men, or they will leave the country. It is no
argument to say that such crimes are punished by the Penal Code, because these penalties are imposed
after commission of the offense and not before. If immigrants are to be encouraged to develop the
resources of the great Islands of Mindoro, and its, as yet, unproductive regions, the Government must be
in a position to guarantee peace and order.

Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy and
thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must prod on
the laggard and the sluggard. The great law of overwhelming necessity is all convincing.

To quote again from the instructive memorandum of the Secretary of the Interior:

Living a nomadic and a wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction — burning and destroying the forests and
making illegal caiñgins thereon. Not bringing any benefit to the State but instead injuring and
damaging its interests, what will ultimately become of these people with the sort of liberty they
wish to preserve and for which they are now fighting in court? They will ultimately become a
heavy burden to the State and on account of their ignorance they will commit crimes and make
depredations, or if not they will be subjected to involuntary servitude by those who may want to
abuse them.

There is no doubt in my mind that this people a right conception of liberty and does not practice
liberty in a rightful way. They understand liberty as the right to do anything they will — going from
one place to another in the mountains, burning and destroying forests and making illegal caiñgins
thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they allege that
they are being deprived thereof without due process of law?

xxx           xxx           xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty without due
process of law' apply to a class of persons who do not have a correct idea of what liberty is and
do not practise liberty in a rightful way?

To say that it does will mean to sanction and defend an erroneous idea of such class of persons
as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any
measures looking to the welfare and advancement of the class of persons in question. It will
mean that this people should be let along in the mountains and in a permanent state of savagery
without even the remotest hope of coming to understand liberty in its true and noble sense.

In dealing with the backward population, like the Manguianes, the Government has been placed
in the alternative of either letting them alone or guiding them in the path of civilization. The latter
measure was adopted as the one more in accord with humanity and with national conscience.

xxx           xxx           xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens. The progress
of those people under the tutelage of the Government is indeed encouraging and the signs of the
times point to a day which is not far distant when they will become useful citizens. In the light of
what has already been accomplished which has been winning the gratitude of most of the
backward people, shall we give up the noble work simply because a certain element, believing
that their personal interests would be injured by such a measure has come forward and
challenged the authority of the Government to lead this people in the pat of civilization? Shall we,
after expending sweat, treasure, and even blood only to redeem this people from the claws of
ignorance and superstition, now willingly retire because there has been erroneously invoked in
their favor that Constitutional guaranty that no person shall be deprived of his liberty without due
process of law? To allow them to successfully invoke that Constitutional guaranty at this time will
leave the Government without recourse to pursue the works of civilizing them and making them
useful citizens. They will thus left in a permanent state of savagery and become a vulnerable
point to attack by those who doubt, nay challenge, the ability of the nation to deal with our
backward brothers.

The manguianes in question have been directed to live together at Tigbao. There they are being
taught and guided to improve their living conditions. They are being made to understand that they
object of the government is to organize them politically into fixed and permanent communities.
They are being aided to live and work. Their children are being educated in a school especially
established for them. In short, everything is being done from them in order that their advancement
in civilization and material prosperity may be assured. Certainly their living together in Tigbao
does not make them slaves or put them in a condition compelled to do services for another. They
do not work for anybody but for themselves. There is, therefore, no involuntary servitude.

But they are compelled to live there and prohibited from emigrating to some other places under
penalty of imprisonment. Attention in this connection is invited to the fact that this people, living a
nomadic and wayfaring life, do not have permanent individual property. They move from one
place to another as the conditions of living warrants, and the entire space where they are roving
about is the property of the nation, the greater part being lands of public domain. Wandering from
one place to another on the public lands, why can not the government adopt a measure to
concentrate them in a certain fixed place on the public lands, instead of permitting them to roam
all over the entire territory? This measure is necessary both in the interest of the public as owner
of the lands about which they are roving and for the proper accomplishment of the purposes and
objectives of the government. For as people accustomed to nomadic habit, they will always long
to return to the mountains and follow a wayfaring life, and unless a penalty is provinced for, you
can not make them live together and the noble intention of the Government of organizing them
politically will come to naught.
G. APPLICATION AND CONCLUSION.

Our exhaustive study should have left us in a position to answer specific objections and to reach a
general conclusion.

In the first place, it is argued that the citizen has the right, generally speaking, to go where he pleases.
Could be not, however, be kept away from certain localities ? To furnish an example from the Indian
legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian reservation. Those
citizens certainly did not possess absolute freedom of locomotion. Again the same law provided for the
apprehension of marauding Indians. Without any doubt, this law and other similar were accepted and
followed time and again without question.

It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people
confined as in a prison at the mercy of unscrupulous official. What, it is asked, would be the remedy of
any oppressed Manguian? The answer would naturally be that the official into whose hands are given the
enforcement of the law would have little or not motive to oppress these people; on the contrary, the
presumption would all be that they would endeavor to carry out the purposes of the law intelligently and
patriotically. If, indeed, they did ill-treat any person thus confined, there always exists the power of
removal in the hands of superior officers, and the courts are always open for a redress of grievances.
When, however, only the validity of the law is generally challenged and no particular case of oppression is
called to the attention of the courts, it would seems that the Judiciary should not unnecessarily hamper
the Government in the accomplishment of its laudable purpose.

The question is above all one of sociology. How far, consistently with freedom, may the right and liberties
of the individual members of society be subordinated to the will of the Government? It is a question which
has assailed the very existence of government from the beginning of time. Now purely an ethical or
philosophical subject, nor now to be decided by force, it has been transferred to the peaceful forum of the
Judiciary. In resolving such an issue, the Judiciary must realize that the very existence of government
renders imperatives a power to restrain the individual to some extent, dependent, of course, on the
necessities of the class attempted to be benefited. As to the particular degree to which the Legislature
and the Executive can go in interfering with the rights of the citizen, this is, and for a along time to come
will be, impossible for the courts to determine.

The doctrines of laissez faire  and of unrestricted freedom of the individual, as axioms of economics and
political theory, are of the past. The modern period has shown as widespread belief in the amplest
possible demonstration of governmental activity. The courts unfortunately have sometimes seemed to trial
after the other two branches of the government in this progressive march.

Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the
Legislature has exceeded its rightful authority. it is, indeed, an unusual exercise of that power. But a great
malady requires an equally drastic remedy.

Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of
civilization of the Manguianes is considered. They are restrained for their own good and the general good
of the Philippines. Nor can one say that due process of law has not been followed. To go back to our
definition of due process of law and equal protection of the law, there exists a law ; the law seems to be
reasonable; it is enforced according to the regular methods of procedure prescribed; and it applies alike to
all of a class.

As a point which has been left for the end of this decision and which, in case of doubt, would lead to the
determination that section 2145 is valid. it the attitude which the courts should assume towards the settled
policy of the Government. In a late decision with which we are in full accord, Gambles  vs. Vanderbilt
University (200 Southwestern Reporter, 510) the Chief Justice of the Supreme Court of Tennessee writes:
We can seen objection to the application of public policy as a ratio decidendi. Every really new question
that comes before the courts is, in the last analysis, determined on that theory, when not determined by
differentiation of the principle of a prior case or line of cases, or by the aid of analogies furnished by such
prior case. In balancing conflicting solutions, that one is perceived to tip the scales which the court
believes will best promote the public welfare in its probable operation as a general rule or principle. But
public policy is not a thing inflexible. No court is wise enough to forecast its influence in all possible
contingencies. Distinctions must be made from time to time as sound reason and a true sense of justice
may dictate."

Our attempt at giving a brief history of the Philippines with reference to the so-called non-Christians has
been in vain, if we fail to realize that a consistent governmental policy has been effective in the
Philippines from early days to the present. The idea to unify the people of the Philippines so that they may
approach the highest conception of nationality. If all are to be equal before the law, all must be
approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro must
be populated, and its fertile regions must be developed. The public policy of the Government of the
Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The Manguianes, in
order to fulfill this governmental policy, must be confined for a time, as we have said, for their own good
and the good of the country.

Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a
coordinate branch, be exercised. The whole tendency of the best considered case is toward non-
interference on the part of the courts whenever political ideas are the moving consideration. Justice
Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional law, like other
mortal contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final
decision of the many grave questions which this case presents, the courts must take "a chance," it should
be with a view to upholding the law, with a view to the effectuation of the general governmental policy,
and with a view to the court's performing its duty in no narrow and bigoted sense, but with that broad
conception which will make the courts as progressive and effective a force as are the other departments
of the Government.

We are of the opinion that action pursuant to section 2145 of the Administrative Code does not deprive a
person of his liberty without due process of law and does not deny to him the equal protection of the laws,
and that confinement in reservations in accordance with said section does not constitute slavery and
involuntary servitude. We are further of the opinion that section 2145 of the Administrative Code is a
legitimate exertion of the police power, somewhat analogous to the Indian policy of the United States.
Section 2145 of the Administrative Code of 1917 is constitutional.

Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not
issue. This is the true ruling of the court. Costs shall be taxes against petitioners. So ordered.

Arellano, C.J., Torres and Avanceña, JJ., concur.

Separate Opinions

CARSON, J.,  concurring:

I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in the prevailing,
opinion.
The words "non-Christian' have a clear, definite and well settled signification when used in the Philippine
statute-book as a descriptive adjective, applied to "tribes," "people," or "inhabitants," dwelling in more or
less remote districts and provinces throughout the Islands.

Justice Malcolm, as I think, correctly finds that these words, as used in this connection in our statute-
book, denote the 'low grace of civilization" of the individuals included in the class to which they are
applied. To this I would add that the tests for the determination of the fact that an individual or tribes is, or
is not of the "non-Christian" are, and throughout the period of American occupation always have been,
"the mode of life, the degree of advancement in civilization, and connection or lack of connection with
some civilized community." (Cf. letter of Collector of Internal Revenue dated September 17, 1910, and set
out in the principal opinion.)

The legislative and administrative history of the Philippine Islands clearly discloses that the standard of
civilization to which a specific tribe must be found to have advanced, to justify its removal from the class
embraces with the descriptive term "non-Christian," as that term is used in the Philippine statute-book, is
that degree of civilization which results in a mode of life within the tribe, such that it is feasible and
practicable to extend to, and enforce upon its membership the general laws and regulations,
administrative, legislative, and judicial, which control the conduct of the admitted civilized inhabitants of
the Islands; a made of life, furthermore, which does not find expression in tribal customs or practices
which tend to brutalize or debauch the members of the tribe indulging in such customs or practices, or to
expose to loss or peril the lives or property of those who may be brought in contact with members of the
tribe.

So the standard of civilization to which any given number or group of inhabitants of particular province in
these Islands, or any individual member of such a group, must be found to have advanced, in order to
remove such group or individual from the class embraced within the statutory description of "non-
Christian," is that degree of civilization which would naturally and normally result in the withdrawal by
such persons of permanent allegiance or adherence to a "non-Christian" tribe, had they at any time
adhered to or maintained allegiance to such a tribe; and which would qualify them whether they reside
within or beyond the habitat of a "non-Christian" tribe, not only to maintain a mode of life independent of a
apart from that maintain by such tribe, but a mode of life as would not be inimical to the lives or property
or general welfare of the civilized inhabitants of the Islands with whom they are brought in contact.

The contention that, in this particular case, and without challenging the validity of the statute, the writ
should issue because of the failure to give these petitioners, as well as the rest of the fifteen thousand
Manguianes affected by the reconcentration order, an opportunity to be heard before any attempt was
made to enforce it, begs the question and is, of course, tantamount to a contention that there is no
authority in law for the issuance of such an order.

If the fifteen thousand manguianes affected by the order complained of had attained that degree of
civilization which would have made it practicable to serve notice upon, and give an opportunity for a real
hearing, to all the members of the tribe affected by the order, it may well be doubted whether the
provincial board and the Secretary of the Interior would have been justified in its enforcement By what
proceeding known to the law, or to be specially adopted in a particular case, could the offices of any
province provide for a genuine hearing upon a proposal to issue a reconcentration order upon a head-
hunting tribe in the north of the Island of Luzon; or upon one of the nomadic tribes whose habitat is in the
mountain fastnesses of Mindanao, and whose individual members have no fixed or known place of
residence, or upon the fifteen thousand Manguianes roaming in the wilds of Mindoro.

Of course, friendly headmen or chief might and, as a rule, should be consulted, after the practice in the
United States when tribes or groups of American Indians have been placed upon reservations; but since
non-Christian head men and chiefs in the Philippines have no lawful authority to bind their acts or their
consent, the objection based on lack of a hearing, would have the same force whether the issuance of a
reconcentration order was or was not preceded by a  pow-wow of this kind.
The truth of the mater is that the power to provide for the issuance of such orders rests upon analogous
principles to those upon which the liberty and freedom or action of children and persons of unsound
minds is restrained, without consulting their wishes, but for their own good and the general welfare. The
power rests upon necessity, that "great master of all things," and is properly exercised only where certain
individuals or groups of individual are found to be of such a low grade of civilization that their own wishes
cannot be permitted to determine their mode of life or place of residence.

The status of the non-Christian inhabitants of these Islands, and the special and necessarily paternal
attitude assume toward them by the Insular Government is well illustrated by the following provisions
found in the Administrative Code of 1917:

SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). — It shall be the duty
of the Bureau of non-Christian tribes to continue the work for advancement and liberty in favor of
the regions inhabited by non-Christian Filipinos and to foster by all adequate means and in a
systematic, rapid, and completely manner the moral, material, economic, social and political
development of those regions, always having in view the aim of rendering permanent the mutual
intelligence between and complete fusion of all the Christian and non-Christian elements
populating the provinces of the Archipelago.

SEC. 2116. Township and settlement fund. — There shall be maintained in the provincial
treasuries of the respective specially organized provinces a special fund to be known as the
township and settlement fund, which shall be available, exclusively, for expenditures for the
benefit of the townships and settlements of the province, and non-Christian inhabitants of the
province, upon approval of the Secretary of the Interior.

As I understand it, the case at bar does not raise any real question as to the jurisdiction of the courts of
these Islands in habeas corpus proceedings, to review the action of the administrative authorities in the
enforcement of reconcentration orders issued, under authority of section 2145 of the Administrative Code,
against a petitioner challenging the alleged fact that he is a "non-Christian" as that term is used in the
statute. I, therefore, express no opinion on that question at this time.

JOHNSON, J., dissenting:

I dissent. The petitioners were deprived of their liberty without a hearing. That fact is not denied. I cannot
give my consent to any act which deprives the humblest citizen of his just liberty without a hearing,
whether he be a Christian or non-Christian. All persons in the Philippine Islands are entitled to a hearing,
at least, before they are deprived of their liberty.

MOIR, J.,  dissenting:

I dissent.

I realize that a dissenting opinion carries little weight, but may sense of justice will not permit me to let this
decision go on record without expressing may strong dissent from the opinion of Justice Malcolm,
concurred in by a majority of the court. I shall not attempt to analyze the opinion or to go into the question
in detail. I shall simply state, as briefly as may be, the legal and human side of the case as it presents
itself to my mind.

The facts are that one Rubi and various other Manguianes in the Province of Mindoro were ordered by
the Provincial governor of Mindoro to remove their residence from their native habitat and to establish
themselves on a reservation at Tigbao in the Province of Mindoro and to remain there, or be punished by
imprisonment if they escaped. This reservation, as appears from the resolution of the provincial board,
extends over an area of 800 hectares of land, which is approximately 2,000 acres, on which about three
hundred manguianes are confined. One of the Manguianes, Dabalos, escaped from the reservation and
was taken in hand by the provincial sheriff and placed in prision at Calapan, solely because he escaped
from the reservation. The Manguianes used out a writ of habeas corpus in this court, alleging that they
are deprived of their liberty in violation of law.

The Solicitor-General of the Philippine Islands makes return to the writ copied in the majority opinion
which states that the provincial governor of Mindoro with the prior approval of his act by the Department
Secretary ordered the placing of the petitioners and others on a reservation.

The manguianes, it is stated on page 694 of the majority opinion, "are very low in culture. They have
considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are peaceful,
timid, primitive, seminomadic people. They number approximately 15,000 (?). The manguianes have
shown no desire for community life, and, as indicated in the preamble to Act No. 547, have no progressed
sufficiently in civilization to make it practicable to bring them under any for of municipal government."

It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro (not including
smaller islands which together make the Province of Mindoro) has an area of 3,851 square miles and a
populations of 28, 361 of which 7, 369 are wild or uncivilized tribes (Manguianes). This appears to be the
total Mangyan population of the province. The total population was less than seven to the mile (Vol. 2, P.I.
Census, pp. 30 and 407).

The Island is fertile, heavily wooded and well watered.

It has no savage population, but it is sparsely settled by Christian Filipinos along the coast and by
Manguianes.

The Manguianes roamed its mountains and valleys, fishing and hunting at will long before Magallanes
[Magellan] anchored his boats in the water of Cebu. They have made little or no progress in the ways of
civilization. "They are a peaceful, timid, primitive, seminomadic people," whom the Government of the
Philippines Islands would bring under the beneficient influence of civilization and progress.

The law provides for it in section 2145 of the Administrative Code, and for those who like Dadalos do not
take kindly to the ways provided for civilizing them section 2759 provides the punishment.

The attorney for the petitioners has raised various constitutional questions, but only the fundamental one
will be considered by me. It is that the sections of the Administrative Code, 2145 and 2759, quoted in the
majority opinion, are in violation of the first paragraph of section 3 of the Act of Congress of August 29,
1916, which reads as follows:

That no law shall be enacted in said Islands which shall deprive any person  of life, liberty or
property without due process of law, or deny to any person therein the equal protection of the
laws.

It is not necessary to argue that a Mangyan is one of the persons protected by that provision.

The Attorney-General argues that the treatment provided for the Manguianes is similar to that accorded
the Indians in the United States, and reference is made all through the court's decision to the decisions of
the United States Supreme Court with reference to the Indians. It is not considered necessary to go into
these cases for the simple reason that all the Indians nations in the United States were considered
as separate nations  and all acts taken in regard to them were the result of separate treaties made by the
United States Government with the Indian nations, and, incompliance with these treaties, reservations
were set apart for them on which they lived and were protected form intrusion and molestation by white
men. Some these reservations were larger than the Islands of Luzon, and they were not measured in
hectares but in thousands of square miles.

The Manguianes are not a separate state. They have no treaty with the Government of the Philippine
Islands by which they have agreed to live within a certain district where they are accorded exclusive
rights. They are citizens of the Philippine Islands. Legally they are Filipinos. They are entitled to all the
rights and privileges of any other citizen of this country. And when the provincial governor of the Province
of Mindoro attempted to take them from their native habitat and to hold them on the little reservation of
about 800 hectares, he deprived them of their rights and their liberty without due process of law, and they
were denied the equal protection of the law.

The majority opinion says "they are restrained for their own good and the general good of the
Philippines."

They are to be made to accept the civilization of the more advanced Filipinos whether they want it or not.
They are backward and deficient in culture and must be moved from their homes, however humble they
may be and "bought under the bells" and made to stay on a reservation.

Are these petitioners charged with any crime? There is no mention in the return of the Solicitor-General of
the Philippine Islands of any crime having been committed by these "peacefully, timid, primitive, semi-
nomadic people."

A memorandum of the Secretary of the Interior of the Philippine Islands is copied in extenso  in the
majority opinion, and from it I gather the nature of their offense which is that —

Living a nomadic and wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction — burning and destroying the forests and
making illegal caiñgins thereon. No bringing any benefit to the State but, instead, injuring and
damaging its interests, what will ultimately become of those people with the sort of liberty they
wish to preserve and for which they are not fighting in court? They will ultimately become a heavy
burden to the State and, on account of their ignorance, they will commit crimes and make
depredations, or if not they will be subjected to involuntary servitude by those who may want to
abuse them.

There is no doubt in my mind that this people has not a right conception of liberty and does not
practice liberty in a rightful way. They understand liberty as the right to do anything they will —
going from one place to another in the mountains, burning and destroying forests and making
illegal caiñgins  thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they are being
deprived thereof without due process of law?

xxx           xxx           xxx

But does the constitutional guaranty that "no person shall be deprived of his liberty without due
process of law" apply to a class of persons who do not have a correct idea of what liberty is and
do not practise liberty in a rightful way?

To say that it does will mean to sanction and defend an erroneous idea of such class of persons
as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any
measures looking to the welfare and advancement of the class of persons in question. It will
 mean that this people be let alone in the mountains and in a permanent state of savagery without
even the remotest hope of coming to understand liberty in its true and noble sense.

In dealing with the backward population, like the Manguianes, the Government has been placed
in the alternative of either letting them alone or guiding them in the path of civilization. The latter
measure was adopted as the one more in accord with humanity and with national conscience.

xxx           xxx           xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens.

There appear to be two intimations or charges in this memorandum; one is that the Manguianes destroy
the forest by making a caiñgin. What is a "caiñgin?" Simply this. These people move their camp or place
of abode frequently and when they do move to a new place, it is necessary to clear the land in order to
plant corn and camotes (sweet potatoes) and they cut down the smaller trees and burn these around the
larger ones, killing them, so that they can plant their crops. The fires never spread in the tropical
undergrowth of an island like Mindoro, but the trees within the caiñgin are killed and crops are planted
and harvested. This land may be abandoned later on — due to superstition, to a lack of game in the
neighborhood, to poor crops from exhausted fertility, or to a natural desire to move on.

Granting that the Manguianes do make caiñgins or clear lands in spots and then abandon them for the
more fertile lands, which every man knows to be just over the hills, we cannot see that they are
committing such a great abuse as to justify incarcerating them on a small tract of land — for incarceration
it is and nothing less.

The second intimation or charge is that "they will become a heavy burden to the state and on account of
their ignorance they will commit crimes and make depredations, or if not they will be subjected to
involuntary servitude by those who want to abuse them." They have never been a burden to the state and
never will be. They have not committed crimes and, when they do, let the law punish them ." The
authorities are anticipating too much from these "peaceful, timid, primitive, semi-nomadic people." Their
history does not demonstrate that we must expect them to commit crimes and jail them to prevent the
possibility. But the Secretary says "they will be subjected to involuntary servitude by those want to abuse
them." Are they more liable to be subjected to involuntary servitude when left free to roam their native hills
and gain a livelihood as they have been accustomed to for hundreds of years, than they will be if closely
confined on a narrow reservation from which they may not escape without facing a term in jail? Is not
more likely that they will be glad to exchange their "freedom" on a small reservation for the great boon of
binding themselves and their children to the more fortunate Christian Filipinos who will feed them and
clothe them in return of their services.?

It think it not only probable but almost a certainty that they will be all be subjected to involuntary personal
servitude if their freedom is limited as it has been. How will they live? There may be persons who are
willing to lend them money with which to buy food on the promise that they will work for them. And if they
accept the loan and do not work for the lender we have another law on the statute books, Act No. 2098,
into whose noose they run their necks, and they may be fined not more than two hundred pesos or
imprisonment for not exceeding six months or both, and when the sentence expires they must again go
into debt or starve, and if they do not work will again go to jail, and this maybe repeated till they are too
old to work and are cast adrift.

The manguianes have committed no offenses and are charged with none. It does not appear they were
ever consulted about their reconcentration. It does not appear that they had any hearing or were allowed
to make any defense. It seems they were gathered here and there whenever found by the authorities of
the law and forcibly placed upon the reservation, because they are "non-Christian," and because the
provincial governor ordered it. Let it be clear there is no discrimination because of religion. The term "non-
Christian" means one who is not a Christian Filipino, but it also means any of the so-called "wild" or
backward tribes of the Philippines. These non-Christian tribes are Moros, Igorrotes, Bukidnons, Ifugaos,
Manguianes and various others, about one millions souls all together. Some of them, like the Moros,
Tinguianes and Ifugaos, have made great progress in civilization. The have beautiful fields reclaimed by
hard labor — they have herds of cattle and horses and some few of them are well educated. Some of the
non-Christians, like the Aetas and the Negritos, are very low in the scale of civilization, but they are one
and all "non-Christians," as the term is used and understood in law and in fact.

All of them, according to the court's opinion under the present law, may be taken from their homes and
herded on a reservation at the instance of the provincial governor, with the prior approval of the
department head. To state such a monstrous proposition is to show the wickedness and illegality of the
section of the law under which these people are restrained of their liberty. But it is argued that there is no
probability of the department head ever giving his approval to such a crime, but the fact that he can do it
and has done it in the present case in what makes the law unconstitutional. The arbitrary and
unrestricted power  to do harm should be the measure by which a law's legality is tested and not the
probability of doing harm.

It has been said that this is a government of laws and not of men; that there is no arbitrary body
of individuals; that the constitutional principles upon which our government and its institutions rest
do not leave room for the play and action of purely personal and arbitrary power, but that all in
authority are guided and limited by these provisions which the people have, the through the
organic law, declared shall be the measure and scope of all control exercised over them. In
particular the fourteenth amendment, and especially the equal protection clause, thereof, forbids
that the individual shall be subjected to any arbitrary exercise of the powers of government; it was
intended to prohibit, and does prohibit, any arbitrary deprivation of life or liberty, or arbitrary
spoliation of property.

As we have seen, a statute which makes a purely arbitrary or unreasonable classification, or

which singles out any particular individuals or class as the subject of hostile and discriminating
legislation, is clearly unconstitutional as being opposed to the fourteenth amendment and
especially to the equal protection clause thereof. This is a plain case, and requires no further
discussion. (Vol. 4, Encyclopedia of U.S. Supreme Court Reports, p. 366.)

When we consider the nature and the theory of our institutions of government, the principles upon
which they are supposed to rest, and review the history of their development, we are constrained
to conclude that they do not mean to leave room for the play and action of purely personal and
arbitrary power. Sovereignty itself is, of course, not subject to law, for its is the author and source
of law; but in our system, while sovereign powers are delegated to the agencies of government,
sovereignty itself remains with the people, by whom and for whom all government exists and acts.
And the law is the definition and limitation of power. It is, indeed, quite true, that there must
always be lodged somewhere, and in some person or body, the authority of final decision; and, in
many cases of mere administration the responsibility is purely political, no appeal lying except to
the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by
means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness,
considered as individual possessions, are secured by those maxims of constitutional law which
are the monuments showing the victorious progress of the race in securing to men the blessings
of civilization under the reign of just and equal laws, so that, in the famous language of
Massachusetts Bill of Rights, the Government of Commonwealth "may be a government of law
and not of men." For the very idea that one man may be compelled to hold his life, or the means
of living, or any material right essential to the enjoyment of life, at the mere will of another, seems
to be intolerable in any country where freedom prevails, as being the essence of slavery itself.
(Yick Wo vs. Hopkins, 118 U.S., 374.)

It is said that the present law is an old Act being substance Act No. 547 of the Philippine Commission. But
it has never been brought before this court for determination of its constitutionality. No matter how
beneficient the motives of the lawmakers if the lawmakers if the law tends to deprive any man of life,
liberty, or property without due process law, it is void.

In may opinion the acts complained of which were taken in conformity with section 2145 of the
Administrative Code not only deprive these Manguianes of their liberty, without due process of law, but
will in all probability deprive them of their life, without due process of law. History teaches that to take a
semi-nomadic tribe from their native fastnesses and to transfer them to the narrow confines of a
reservation is to invite disease an suffering and death. From my long experience in the Islands, I should
say that it would be a crime of title less magnitude to take the Ifugaos from their mountain homes where
they have reclaimed a wilderness and made it a land of beauty and fruitfulness and to transfer them to the
more fertile, unoccupied, malaria infested valleys which they look down upon from their fields — than it
would be to order their decapitation en masse.

There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are in exactly the same
category as the Manguianes. If the Manguianes may be so taken from their native habitat and
reconcentrated on a reservation — in effect an open air jail — then so may the Ifugaos, so may the
Tinguianes, who have made more progress than the Ifugaos, and so may the Moros.

There are "non-Christian" in nearly every province in the Philippine Islands. All of the thirty-nine governors
upon the prior approval of the head of the department, have the power under this law to take the non-
Christian inhabitants of their different provinces form their homes and put them on a reservation for "their
own good and the general good of the Philippines," and the court will grant them no relief. These
unfortunate citizens of the Philippine Islands would hold their liberty, and their lives, may be, subject to the
unregulated discretion of the provincial governor.

And who would be safe?

After the reservation is once established might not a provincial governor decide that some political enemy
was a non-Christian, and that he would be safer on the reservation. No matter what his education and
culture, he could have no trial, he could make no defense, the judge of the court might be in a distant
province and not within reach, and the provincial governor's fiat is final.

The case of the United States vs. Crook (Federal Cases 14891), cited in the majority opinion, should be
quoted at length. District Judge Dundy said:

During the fifteen years in which I have been engaged in administering the laws of my country, I
have never been called upon to hear or decide a case that appealed so strongly to my sympathy
as the one now under consideration. On the one side, we have a few of the remnants of a once
numerous and powerful, but now weak, insignificant, unlettered, and generally despised race; and
the other, we have the representative of one of the most powerful, most enlightened, and most
christianized nations of modern times. On the one side, we have the representatives of this
wasted race coming into this national tribunal of ours, asking for justice and liberty to enable them
to adopt our boasted civilization, and to pursue the arts of peace, which have made us great and
happy as a nation; on the other side, we have this magnificent, if not magnanimous, government,
resisting this application with the determination of sending these people back to the country which
is to them less desirable perpetual imprisonment in their own native land. But I think it is
creditable to the heart and mind of the brave and distinguished officer who is made respondent
herein to say that he has no sort of sympathy in the business in which he is forced by his position
to bear a part so conspicuous; and, so far as I am individually concerned, I think it not improper to
say that, if the strongest possible sympathy could give the relators title to freedom, they would
have been restored to liberty the moment the arguments in their behalf were closed. no
examination or further thought would then have been necessary or expedient. But in a country
where liberty is regulated by law, something more satisfactory and enduring than mere sympathy
must furnish and constitute the rule and basis of judicial action. It follows that this case must be
examined and decided on principles of law, and that unless the relators are entitled to their
discharge under the constitution or laws of the United States, or some treaty, they must be
remanded to the custody of the officer who caused their arrest, to be returned to the Indian
Territory which they left without the consent of the government.

On the 8th of April, 1879, the relators Standing Bear and twenty-five others, during the session of
the court held at that time of Lincoln, presented their petition, duly verified, praying for the
allowance of a writ of habeas corpus and their final discharged from custody thereunder.

The petition alleges, in substance, that the relators are Indians who have formerly belonged to the
Ponca tribe of Indians now located in the Indian Territory; that they had some time previously
withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted
the general habits of the whites, and were then endeavoring to maintain themselves by their own
exertions, and without aid or assistance from the general government; that whilst they were thus
engaged, and without being guilty of violating any of the laws of the United States, they were
arrested and restrained of their liberty by order of the respondent, George Crook.

The writ was issued and served on the respondent on the 8th day of April, and, the distance
between the place where the writ was made returnable and the place where the relators were
confined being more than twenty miles, ten days were alloted in which to make return.

On the 18th of April the writ was returned, and the authority for the arrest and detention is therein
shown. The substance of the return to the writ, and the additional statement since filed, is that the
relators are individual members of, and connected with, the Ponca Tribe of Indians; that they had
fled or escaped from a reservation situated in some place within the limits of the indian Territory
— had departed therefrom without permission from the government; and, at the request of the
secretary of the interior, the general of the army had issued an order which required the
respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant
to the said order, he had caused the relators to be arrested on the Omaha Indian reservation, and
that they were in his custody for the purpose of being returned to the Indian Territory.

It is claimed upon the one side, and denied upon the other, that the relators had withdrawn and
severed, for all time, their connection with the tribe to which they belonged; and upon this point
alone was there any testimony produced by either party hereto. The other matter stated in the
petition and the return to the writ are conceded to be true; so that the questions to be determined
are purely questions of law.

On the 8th of Mar, 1859, a treaty was made by the United States with the Ponca tribe of Indians,
by which a certain tract of country, north of the Niobrara river and west of the Missouri, was set
apart for the permanent home of the aid Indians, in which the government agreed to protect them
during their good behaviour. But just when or how, or why, or under what circumstances, the
Indians left their reservation in Dakota and went to the Indian Territory does not appear.

xxx           xxx           xxx

A question of much greater importance remains for consideration, which, when determined, will
be decisive of this whole controversy. This relates to the right of the government to arrest and
hold the relators for a time, for the purpose of being returned to a point in the Indian Territory from
which it is alleged the Indians escaped. I am not vain enough to think that I can do full justice to a
question like the one under consideration. But, as the mater furnishes so much valuable material
for discussion, and so much food for reflection, I shall try to present it as viewed from my own
standpoint, without reference to consequences or criticisms, which, though not specially invited,
will be sure to follow.
 xxx           xxx           xxx

On the 15th day of August, 1876, congress passed the general Indian appropriation bill, and in it
we find a provision authorizing the secretary of the interior to use $25,000 for the removal of the
Poncas to the Indian Territory, and providing them a home therein, with consent of the tribe. (19
Sta., 192.)

xxx           xxx           xxx

The Poncas lived upon their reservation in southern Dakota, and cultivated a portion of the same,
until two or three years ago, when they removed therefrom, but whether by force or otherwise
does not appear. At all event, we find a portion of them, including the relators, located at some
point in the Indian Territory. There, the testimony seems to show, is where the trouble
commenced. Standing Bear, the principal witness, states that out of five hundred and eighty-one
Indians who went from the reservation in Dakota to the Indian Territory, one hundred and fifty-
eight died within a year or so, and a great proportion of the others were sick and disabled,
caused, in a great measure, no doubt, from change of climate; and to save himself and the
survivors of his wasted family, and the feeble remnant of his little band of followers, he
determined to leave the Indian Territory and return to his old home, where, to use his own
language, "he might live and die in peace, and be buried with his fathers." He also stated that he
informed the agent of their final purpose to leave, never to return, and that he and his followers
had finally, fully, and forever severed his and their connection with the Ponca tribe of Indians, and
had resolved to disband as a tribe, or band of Indians, and to cut loose from the government, go
to work, become self-sustaining, and adopt the habits and customs of a higher civilization. To
accomplish what would seem to be a desirable and laudable purpose, all who were able to do so
went to work to earn a living. The Omaha Indians, who speak the same language, and with whom
many of the Poncas have long continued to intermarry, gave them employment and ground to
cultivate, so as to make them self-sustaining. And it was when at the Omaha reservation, and
when thus employed, that they were arrested by order of the government, for the purpose of
being taken back to the Indian Territory. They claim to be unable to see the justice, or reason, or
wisdom, or necessity, of removing them by force from their own native plains and blood relations
to a far-off country, in which they can see little but new-made graves opening for their reception.
The land from which they fled in fear has no attractions for them. The love of home and native
land was strong enough in the minds of these people to induce them to brave every peril to return
and live and die where they had been reared. The bones of the dead son of Standing Bear were
not to repose in the land they hoped to be leaving forever, but were carefully preserved and
protected and formed a part of what was to them melancholy procession homeward. Such
instances of parental affections, and such love home and native land, may be heathen in origin,
but it seems to that they are not unlike Christian in principle.

And the court declared that the Indians were illegally held by authority of the United States and in violation
of their right to life, liberty, and the pursuit of happiness, and ordered their release from custody.

This case is very similarly to the case of Standing Bear and others.

I think this Court should declare that section 2145 and 2759 of the Administrative Code of 1917 are
unconstitutional, null and void, and that the petitioners are illegally restrained of their liberty, and that they
have been denied the equal protection of the law, and order the respondents immediately to liberate all of
the petitioners.

2. G.R. No. 34163           September 18, 1931

 GREGORIO PEDRO, petitioner-appellant,
vs.
THE PROVINCIAL BOARD OF RIZAL, ET AL., respondents-appellees.

Arsenio Santos for appellant.

Provincial Fiscal Opinion and Guevara, Francisco and Recto for appellees.

VILLA-REAL, J.:

This case is before us by virtue of the appeal taken by the petitioner Gregorio Pedro from the judgment of
the Court of First Instance of Rizal dismissing his action for the annulment of an ordinance, with costs
against him.

In support of his appeal, the appellant assigns the following alleged errors as committed by the trial court
in its judgment, to wit:

1. The lower court erred in holding that Ordinance No. 36, series of 1928, approved by the acting
councilors, is valid and legal.

2. The lower court erred in denying the petitioner an acquired right, notwithstanding Ordinance
No. 35 and the permit giving him by the president in accordance therewith.

3. The lower court erred in holding that the opening, maintenance, and operation of the Galas
cockpit is injurious to the consumptive patients of the Santol Sanatorium.

4. The lower court erred in abstaining from making any ruling regarding the legality of the action
taken by the provincial board, suspending the effects of Ordinance No. 35 of the municipal
council of Caloocan, and in finally disapproving it, according to the resolutions enacted by it and
numbered 1135, series of 1928, and 154, series of 1929.

5. The lower court erred in dismissing this case and in not declaring permanent the injunction
sought, and in not sentencing the plaintiffs [respondents] jointly and severally to pay the damages
claimed in the complaint.

The following relevant facts are necessary for the decision of the question raised by the instant appeal:

On May 8, 1926, there was organized in the municipality of Caloocan, Province of Rizal, an association
for the construction and exploitation of cockpits, called "La Sociedad Bighani."

On May 22, 1926, Eugenio Tansioco, the president of the association, applied to the municipal president
of Caloocan and obtain a permit to construct a building of strong materials at Galas, in said municipality,
to be used as cockpit, upon payment of the proper fees. (Exhibit 1.)

While the construction was under way, Pablo, then president of Caloocan, addressed a communication to
Eugenio Tansioco on June 15, 1926, warning him that the site of the building was not the one designated
by the chief of police, and that it was within the radius of 1,500 meters from the hospital of the Philippine
Antituberculosis Society in Santol, in direct contravention of Ordinance No. 15, series of 1926, enacted on
May, 1926.

The permit having been annulled, and the payments theretofore made forfeited, the "Sociedad Bighani"
filed civil case No. 30537 in the Court of First Instance of Manila on September 21, 1926, against said
Pablo Pablo, as municipal president of Caloocan, et al., for a preliminary injunction requiring them to
refrain from impeding or obstructing the operation and exploitation of the Bighani cockpit, which at that
time was completed and ready to be thrown open to the public.

On August 26, 1927, the Court of first Instance of Manila rendered judgment absolving the defendants
from the complaint, which was affirmed by this court on October 15, 1928. (Company "Bighani" vs. 53
Phil., 886.)

On September 18, 1927, the municipal council of Caloocan enacted Ordinance No. 34, providing in the
first section, among other things, that outside the barrios of Loma, Talipapa, and Novaliches, where only
one cockpit might be established, cockpits might be established at a distance of not less than 1,500
meters from another licensed cockpit, public schoolhouse, or any hospital or charitable institution existing
within the municipal radius.

As a result of the general election held on June 5, 1928, in the municipality of Caloocan, Rizal, the
municipal council, formerly comprising Pablo Pablo, as president, Blas Bernardino, as vice-president, and
Severino Pañganiban, Diego Justo, Esteban Sanchez, Patricio Galuran, Raymundo Andres, Emiliano
Samson, Vicente Sevilla, Lucas Pascual, Placido C. del Mundo, Delfin Rodriguez, Jorge Nadurata,
Anacleto Victoria, Emilio Acab, and Mateo Austria, as councilors, was substituted by another comprising
the newly elected Dominador Aquino, as president, Diego Justo, as vice-president, and Blas Bernardino,
Flaviano de Jesus, Pedro Galang, Celestino C. Celosa, Nicolas Carpio, Lucas Pascual, Basilio Biglang-
awa, and Lucas Bustamante, as councilors, who were inducted into office on October 16th of that year.

On December 21, 1928, the plaintiff herein, Gregorio Pedro, acquired by absolute sale all the rights and
interests of the "Sociedad Bighani" in the cockpit bearing its name. (Exhibit M.)

On the same date, December 21, 1928, said plaintiff, Gregorio Pedro, addressed a communication to the
municipal council of Caloocan soliciting a permit to open, operate, maintain, and exploit said cockpit for a
period of four years, binding himself to observe to the letter all municipal ordinances on cockpits. (Exhibit
A.)

On December 26, 1928, the municipal council of Caloocan passed resolution No. 202 approving
Ordinance No. 35, series of 1928, amending section 1 of Ordinance No. 34, series of 1927, providing,
among other things that only one cockpit could be established in each of the barrios of Galas, Loma,
Talipapa, and Novaliches, and any other place outside said barrios, provided, in the latter case, said
cockpits are at a distance of not less than 1,000 meters from another licensed cockpit, and 500 meters
from any hospital or charitable institution within the municipality of Caloocan. (Exhibit C.)

On the same date, December 26, 1928, the municipal councilors of Caloocan, Blas Bernardino, Flaviano
de Jesus, and Pedro Galang, signed and forwarded to the provincial governor of Rizal an accusation
against Dominador Aquino, the municipal president, and the other councilors who approved Ordinance
No. 35, series of 1928, alleging that they had been bribed to vote in favor of that ordinance. (Exhibit 4.)

The provincial governor endorsed the accusation to the provincial board of Rizal, which through resolution
No. 1110 dated December 27, 1928, ordered the temporary suspension of the members denounced
pending the administrative investigation of the accusation. By virtue of said resolution No. 1110 of the
provincial board of Rizal, and using one of the powers conferred upon him by law, the provincial governor
of Rizal, Eligio Naval, suspended the municipal president and the denounced members from their
respective offices on December 28, 1928. (Exhibits 5 to 5-E.)

On the same date, December 28, 1928, between 9 and 10 o'clock in the morning, the appellant Gregorio
Pedro paid into the municipal treasury the sum of P2,050 as a license fee on his cockpit for the first
quarter of the year 1929, and the proper receipt (Exhibit L), and the permit (Exhibit D), were issued to him
authorizing him to operate, maintain, exploit, and open to the public a day cockpit in the barrio of Galas,
Caloocan, Rizal, for a period of four years.
On December 29, 1928, the municipal council ad interim in Caloocan, passed resolution No. 9, series of
1928, approving Ordinance No. 36, series of 1928, suspending the effects of resolution No. 202 of the
suspended council, approving Ordinance No. 35, series of 1928, while a special committee created by the
same ordinance investigated the expediency of permitting the exploitation and opening of the Galas
cockpit at the site applied for by the proprietor, Gregorio Pedro. (Exhibit 6.)

On the same date, December 29, 1928, the provincial board of Rizal passed resolution No. 1135
suspending the effects of resolution No. 202 of the municipal council of Caloocan approving Ordinance
No. 35, series of 1928, pending final decision on the validity of said ordinance by said board. (Exhibit H.)

On January 16, 1929, the Director of the Santol Tuberculosis Sanatorium addressed a communication to
the temporary president of the municipal council of Caloocan, Flaviano de Jesus, stating that a cockpit
established in the barrio of Galas, owing to the noise and clamor of the crowd, would retard the recovery
of the patients in said sanatorium, and would tend to increase the danger of spreading the disease among
those visiting the cockpit. (Exhibit 11.)

On February 1, 1929, the Chief of the Executive Bureau confirmed the resolution of the provincial board
of Rizal holding the respondents in the administrative investigation mentioned above guilty of
maladministration, and imposing upon each of them a punishment of thirty days' suspension. (Exhibit 7.)

On the same date, February 1, 1929, following the decision of the Executive Bureau mentioned above,
the provincial board of Rizal, through resolution No. 154, disapproved said resolution No. 202 of the
municipal council of Caloocan, approving Ordinance No. 35, series of 1928. (Exhibit 1.)

On February 2, 1929, the president of the third sanitary division of Rizal, acting upon the appellant's
application filed on January 30, 1929, issued a certificate to the effect that after a proper inspection of the
Galas cockpit, he had found it to be in good sanitary condition.

On February 7, 1929, Gregorio Pedro furnished a bond of P10,000 in favor of the municipality of
Caloocan to secure the payment of the fees accruing during the years from 1929 to 1932, which is the
period included in the license issued to him for the opening and operation of his cockpit in Galas, and this
bond was accepted and approved by the respondent municipal president, Dominador Aquino, and
certified by the provincial treasurer, Jose Villegas. (Exhibit E.)

On February 13, 1929, councilor Lucas Bustamante submitted a resolution at a special session of the
municipal council of Caloocan, whereby said council appealed to the Executive Bureau from the
aforementioned resolution No. 154 of the provincial board of Rizal, but the resolution did not pass owing
to the lack of two-thirds of the members necessary, with five members voting in favor and three against it.

On February 14, 1929, the appellant Gregorio Pedro sent the municipal president of Caloocan a
communication, informing him that having fulfilled all the requirements of the law and the ordinances then
in force, he would open his cockpit in Galas to the public in the morning of February 17, 1929. (Exhibit J.)

On February 15, 1929, the respondent municipal president of Caloocan addressed a communication to
the appellant Gregorio Pedro informing him that under no circumstance could said president permit the
appellant to open his cockpit in Galas, Caloocan, to the public, for Ordinance No. 35, series of 1928,
under which a permit had been given him to open and exploit his aforesaid cockpit had been disapproved
by the provincial board of Rizal in its resolution No. 154, series of 1928, as a result of which the
aforementioned ordinance became null and void.

The first question to decide in this appeal is that raised in the first assignment of error, to wit, whether
Ordinance No. 36, series of 1928, approved by the temporary councilors, is valid.
The appellant argues for the nullity of Ordinance No. 36, series of 1928, approved on December 29,
1928, by the temporary councilors appointed by the provincial governor of Rizal, Eligio Naval, on the
ground that (1) it impairs the acquired rights of said appellant; (2) it was enacted on account of prejudice,
because it was intended for a special and not a general purpose, namely to prevent, at any cost, the
opening, maintenance, and exploitation of the cockpit of the said petitioner-appellant; and (3) it provides
for special committee composed of persons who are not members of the council, vested them with
powers which of their very nature, cannot be delegated by said council to that committee.

The petitioner-appellant contends that, having obtained the proper permit to maintain, exploit, and open to
the public the cockpit in question, having paid the license fee and fulfilled all the requirements provided by
Ordinance No. 35, series of 1928, he has acquired a right which cannot be taken away from him by
Ordinance No. 36, series of 1928, which was subsequently approved. This court has already held that an
ordinance regulating the functioning of cockpits does not create irrevocable rights and may be abrogated
by another ordinance. (Vinco vs. Municipality of Hinigaran, 41 Phil., 790; Joaquin vs. Herrera, 37 Phil.,
705; 12 Corpus Juris, 958, sec. 494; 37 Corpus Juris, 168.)

The petitioner-appellant also contends that said Ordinance No. 36 was passed due to prejudice "because
it was intended for a special and not a general purpose, namely to prevent, at any cost, the opening,
maintenance, and exploitation of the cockpit of the said petitioner." The aforesaid Ordinance No. 36 was
not approved for the purpose of injuring the petitioner, but to correct an irregularity consisting in the
passage of Ordinance No. 35, which had been enacted to favor the said petitioner-appellant. The
"Sociedad Bighani," from which the herein petitioner-appellant acquired the ownership of the cockpit here
in question, was denied a license to operate it, because it had been constructed in violation of Ordinance
No. 15, series of 1926, later amended by Ordinance No. 34, series of 1927. The "Sociedad Bighani"
instituted proceedings against the president and municipal council of Caloocan, Rizal, in civil case No.
30537 of the Court of First Instance of Manila, to prevent said defendants from impeding the operation
and exploitation of the Bighani cockpit, and the court decided in favor of said defendants, absolving them
from the complaint on the ground among other reasons, that the Bighani cockpit had been constructed
within the prohibited distance from the Antitubercular Sanatorium of Santol, and that decision was
affirmed by this court on appeal. (Company "Bighani" vs. Pablo, supra.) The cockpit in question now is the
former Bighani cockpit mentioned above; it occupies the same site; and the same hygienic reasons which
prompted the enactment of Ordinance No. 15, amended by Ordinance No. 34, cited above, exist now;
therefore, when this was amended by Ordinance No. 35, reducing the distance between a cockpit and
any hospital, so that the Bighani cockpit would be beyond said distance, the municipal council which
amended it acted with partiality towards a certain person, namely, the petitioner-appellant, to the
prejudice of the patients in the aforesaid sanatorium. According to Elliot in his work "Municipal
Corporations," cited by said petitioner-appellant himself, said Ordinance No. 35 is void because it is
partial. (Elliot, Municipal Corporations, sec. 147; Dillon, Municipal Corporations, p. 915).

Ordinance No. 36, which seeks to correct said irregularity, suspended the effects of said Ordinance No.
35, impliedly reestablishing Ordinance No. 34, is therefore valid.

The other reason given by the petitioner-appellant to show that Ordinance No. 36, is void is that the
municipal council in approving it delegated its legislative powers to a special sanitary committee.

Section 2 of Ordinance No. 36, series of 1928, provides as follows:

SEC. 2. A committee is hereby provided for, to be composed of the president of the third sanitary
division of Caloocan, Rizal, a practising physician residing in this municipality, and a member of
the municipal council, whose duty it shall be to make the necessary investigation to determine
whether or not the exploitation of the cockpit in the barrio of Galas for which Gregorio Pedro has
applied for a permit, would be injurious to any public or private interest. This special committee
shall make such investigation and submit a report in due form to this municipal council within the
shortest time possible for its definite action.
The municipal council of Caloocan  pro tempore therefore does not delegate by that ordinance to the
special committee thereby created any legislative function, but only entrusts to it the study of the effect of
the operation and exploitation of the cockpit under consideration upon public and private interests, in
order to determine whether or not the license should issue. Informational work of this nature, owing to its
technical character, may be entrusted to technical committees. (12 Corpus Juris, 846.)

Having arrived at the conclusion that Ordinance No. 36 is valid and that the petitioner-appellant has
acquired no irrevocable right by virtue of the license granted him under Ordinance No. 35, approved to
favor him, which is therefore void, we need not discuss the other assignments of error by the petitioner-
appellant.

Wherefore, we are of opinion and so hold: (1) That a license authorizing the operation and exploitation of
a cockpit is not property of which the holder may not be deprived without due process of law, but a mere
privilege which may be revoked when the public interests so require; (2) that the work entrusted by a
municipal council to a special sanitary committee to make a study of the sanitary effects upon the
neighborhood of the establishment of a cockpit, is not legislative in character, but only informational, and
may be delegated; and (3) that an ordinance, approved by a municipal council duly constituted, which
suspends the effects of another which had been enacted to favor the grantee of a cockpit license, is valid
and legal.

By virtue whereof, finding no error in the judgment appealed from, it is hereby affirmed, with costs against
the appellant. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur.

3. G.R. No. 135190      April 3, 2002

SOUTHEAST MINDANAO GOLD MINING CORPORATION, petitioner,

vs.
BALITE PORTAL MINING COOPERATIVE and others similarly situated; and THE HONORABLE
ANTONIO CERILLES, in his capacity as Secretary of the Department of Environment and Natural
Resources (DENR), PROVINCIAL MINING REGULATORY BOARD OF DAVAO (PMRB-Davao),
respondents.

YNARES-SANTIAGO, J.:

This is a petition for review of the March 19, 1998 decision of the Court of Appeals in CA-G.R. SP No.
44693, dismissing the special civil action for certiorari, prohibition  and mandamus,  and the resolution
dated August 19, 1998 denying petitioner's motion for reconsideration.

The instant case involves a rich tract of mineral land situated in the Agusan-Davao-Surigao Forest
Reserve known as the "Diwalwal Gold Rush Area." Located at Mt. Diwata in the municipalities of
Monkayo and Cateel in Davao Del Norte, the land has been embroiled in controversy since the mid-80's
due to the scramble over gold deposits found within its bowels.

From 1985 to 1991, thousands of people flocked to Diwalwal to stake their respective claims. Peace and
order deteriorated rapidly, with hundreds of people perishing in mine accidents, man-made or otherwise,
brought about by unregulated mining activities. The multifarious problems spawned by the gold rush
assumed gargantuan proportions, such that finding a "win-win" solution became a veritable needle in a
haystack.
On March 10, 1988, Marcopper Mining Corporation (Marcopper) was granted Exploration Permit No. 133
(EP No. 133) over 4,491 hectares of land, which included the hotly-contested Diwalwal area. 1 Marcopper's
acquisition of mining rights over Diwalwal under its EP No. 133 was subsequently challenged before this
Court in "Apex Mining Co., Inc., et al. v. Hon. Cancio C. Garcia, et al.," 2 where Marcopper's claim was
sustained over that of another mining firm, Apex Mining Corporation (Apex). The Court found that Apex
did not comply with the procedural requisites for acquiring mining rights within forest reserves.

Not long thereafter, Congress enacted on June 27, 1991 Republic Act No. 7076, or the People's Small-
Scale Mining Act. The law established a People's Small-Scale Mining Program to be implemented by the
Secretary of the DENR3 and created the Provincial Mining Regulatory Board (PMRB) under the DENR
Secretary's direct supervision and control.4 The statute also authorized the PMRB to declare and set aside
small-scale mining areas subject to review by the DENR Secretary 5 and award mining contracts to small-
scale miners under certain conditions.6

On December 21, 1991, DENR Secretary Fulgencio S. Factoran issued Department Administrative Order
(DAO) No. 66, declaring 729 hectares of the Diwalwal area as non-forest land open to small-scale
mining.7 The issuance was made pursuant to the powers vested in the DENR Secretary by Proclamation
No. 369, which established the Agusan-Davao-Surigao Forest Reserve.

Subsequently, a petition for the cancellation of EP No. 133 and the admission of a Mineral Production
Sharing Arrangement (MPSA) proposal over Diwalwal was filed before the DENR Regional Executive
Director, docketed as RED Mines Case No. 8-8-94 entitled, "Rosendo Villaflor, et al. v. Marcopper Mining
Corporation."

On February 16, 1994, while the RED Mines case was pending, Marcopper assigned its EP No. 133 to
petitioner Southeast Mindanao Gold Mining Corporation (SEM), 8 which in turn applied for an integrated
MPSA over the land covered by the permit.

In due time, the Mines and Geosciences Bureau Regional Office No. XI in Davao City (MGB-XI) accepted
and registered the integrated MPSA application of petitioner. After publication of the application, the
following filed their oppositions:

a) MAC Case No. 004(XI) - JB Management Mining Corporation;

b) MAC Case No. 005(XI) - Davao United Miners Cooperative;

c) MAC Case No. 006(XI) - Balite Integrated Small Scale Miner's Cooperative;

d) MAC Case No. 007(XI) - Monkayo Integrated Small Scale Miner's Association, Inc.;

e) MAC Case No. 008(XI) - Paper Industries Corporation of the Philippines;

f) MAC Case No. 009(XI) - Rosendo Villaflor, et al.;

g) MAC Case No. 010(XI) - Antonio Dacudao;

h) MAC Case No. 011(XI) - Atty. Jose T. Amacio;

i) MAC Case No. 012(XI) - Puting-Bato Gold Miners Cooperative;

j) MAC Case No. 016(XI) - Balite Communal Portal Mining Cooperative; and
 k) MAC Case No. 97-01(XI) - Romeo Altamera, et al.

In the meantime, on March 3, 1995,  Republic Act No. 7942, the Philippine Mining Act, was enacted.
Pursuant to this statute, the above-enumerated MAC cases were referred to a Regional Panel of
Arbitrators (RPA) tasked to resolve disputes involving conflicting mining rights. The RPA subsequently
took cognizance of the RED Mines case, which was consolidated with the MAC cases.

On April 1, 1997, Provincial Mining Regulatory Board of Davao passed Resolution No. 26, Series of 1997,
authorizing the issuance of ore transport permits (OTPs) to small-scale miners operating in the Diwalwal
mines.

Thus, on May 30, 1997, petitioner filed a complaint for damages before the Regional Trial Court of Makati
City, Branch 61, against the DENR Secretary and PMRB-Davao. SEM alleged that the illegal issuance of
the OTPs allowed the extraction and hauling of P60,000.00 worth of gold ore per truckload from SEM's
mining claim.

Meanwhile, on June 13, 1997, the RPA resolved the Consolidated Mines cases and decreed in an
Omnibus Resolution as follows:

VIEWED IN THE LIGHT OF THE FOREGOING, the validity of Exploration Permit No. 133 is
hereby reiterated and all the adverse claims against MPSAA No. 128 are DISMISSED. 9

On June 24, 1997, the DENR Secretary issued Memorandum Order No. 97-03 10 which provided, among
others, that:

1. The DENR shall study thoroughly and exhaustively the option of direct state utilization of the
mineral resources in the Diwalwal Gold-Rush Area. Such study shall include, but shall not be
limited to, studying and weighing the feasibility of entering into management agreements or
operating agreements,  or both, with the appropriate government instrumentalities or private
entities, or both, in carrying out the declared policy of rationalizing the mining operations in the
Diwalwal Gold Rush Area; such agreements shall include provisions for profit-sharing between
the state and the said parties, including profit-sharing arrangements with small-scale miners,  as
well as the payment of royalties to indigenous cultural communities, among others. The
Undersecretary for Field Operations, as well as the Undersecretary for Legal and Legislative
Affairs and Attached Agencies, and the Director of the Mines and Geo-sciences Bureau are
hereby ordered to undertake such studies. x x x11

On July 16, 1997, petitioner filed a special civil action for certiorari, prohibition  and mandamus  before the
Court of Appeals against PMRB-Davao, the DENR Secretary and Balite Communal Portal Mining
Cooperative (BCPMC), which represented all the OTP grantees. It prayed for the nullification of the
above-quoted Memorandum Order No. 97-03 on the ground that the "direct state utilization" espoused
therein would effectively impair its vested rights under EP No. 133; that the DENR Secretary unduly
usurped and interfered with the jurisdiction of the RPA which had dismissed all adverse claims against
SEM in the Consolidated Mines cases; and that the memorandum order arbitrarily imposed the
unwarranted condition that certain studies be conducted before mining and environmental laws are
enforced by the DENR.

Meanwhile, on January 6, 1998, the MAB rendered a decision in the Consolidated Mines cases, setting
aside the judgment of the RPA. 12 This MAB decision was then elevated to this Court by way of a
consolidated petition, docketed as G.R. Nos. 132475 and 132528.1âwphi1.nêt

On March 19, 1998, the Court of Appeals, through a division of five members voting 3-2, 13 dismissed the
petition in CA-G.R. SP No. 44693. It ruled that the DENR Secretary did not abuse his discretion in issuing
Memorandum Order No. 97-03 since the same was merely a directive to conduct studies on the various
options available to the government for solving the Diwalwal conflict. The assailed memorandum did not
conclusively adopt "direct state utilization" as official government policy on the matter, but was simply a
manifestation of the DENR's intent to consider it as one of its options, after determining its feasibility
through studies. MO 97-03 was only the initial step in the ladder of administrative process and did not, as
yet, fix any obligation, legal relationship or right. It was thus premature for petitioner to claim that its
"constitutionally-protected rights" under EP No. 133 have been encroached upon, much less, violated by
its issuance.

Additionally, the appellate court pointed out that petitioner's rights under EP No. 133 are not inviolable,
sacrosanct or immutable. Being in the nature of a privilege granted by the State, the permit can be
revoked, amended or modified by the Chief Executive when the national interest so requires. The Court of
Appeals, however, declined to rule on the validity of the OTPs, reasoning that said issue was within the
exclusive jurisdiction of the RPA.

Petitioner filed a motion for reconsideration of the above decision, which was denied for lack of merit on
August 19, 1998.14

Hence this petition, raising the following errors:

I. THE COURT OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR, AND HAS
DECIDED A QUESTION OF SUBSTANCE NOT THERETOFORE DETERMINED BY THIS
HONORABLE SUPREME COURT, OR HAS DECIDED IT IN A WAY PROBABLY NOT IN
ACCORD WITH LAW OR WITH APPLICABLE DECISIONS OF THIS HONORABLE COURT IN
UPHOLDING THE QUESTIONED ACTS OF RESPONDENT DENR SECRETARY WHICH ARE
IN VIOLATION OF MINING LAWS AND IN DEROGATION OF PETITIONER'S VESTED RIGHTS
OVER THE AREA COVERED BY ITS EP NO. 133;

II. THE COURT OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR IN HOLDING
THAT AN ACTION ON THE VALIDITY OF ORE TRANSPORT PERMIT (OTP) IS VESTED IN
THE REGIONAL PANEL OF ARBITRATORS.15

In a resolution dated September 11, 2000, the appealed Consolidated Mines cases, docketed as G.R.
Nos. 132475 and 132528, were referred to the Court of Appeals for proper disposition pursuant to Rule
43 of the 1997 Rules of Civil Procedure. 16 These cases, which were docketed as CA-G.R. SP Nos. 61215
and 61216, are still pending before the Court of Appeals.

In the first assigned error, petitioner insists that the Court of Appeals erred when it concluded that the
assailed memorandum order did not adopt the "direct state utilization scheme" in resolving the Diwalwal
dispute. On the contrary, petitioner submits, said memorandum order dictated the said recourse and, in
effect, granted management or operating agreements as well as provided for profit sharing arrangements
to illegal small-scale miners.

According to petitioner, MO 97-03 was issued to preempt the resolution of the Consolidated Mines cases.
The "direct state utilization scheme" espoused in the challenged memorandum is nothing but a legal
shortcut, designed to divest petitioner of its vested right to the gold rush area under its EP No. 133.

We are not persuaded.

We agree with the Court of Appeals' ruling that the challenged MO 97-03 did not conclusively adopt
"direct state utilization" as a policy in resolving the Diwalwal dispute. The terms of the memorandum
clearly indicate that what was directed thereunder was merely a study of this option and nothing else.
Contrary to petitioner's contention, it did not grant any management/operating or profit-sharing agreement
to small-scale miners or to any party, for that matter, but simply instructed the DENR officials concerned
to undertake studies to determine its feasibility. As the Court of Appeals extensively discussed in its
decision:

x x x under the Memorandum Order, the State still had to study prudently and exhaustively the
various options available to it in rationalizing the explosive and ever perilous situation in the area,
the debilitating adverse effects of mining in the community and at the same time, preserve and
enhance the safety of the mining operations and ensure revenues due to the government from
the development of the mineral resources and the exploitation thereof. The government was still
in earnest search of better options that would be fair and just to all parties concerned, including,
notably, the Petitioner. The direct state utilization of the mineral resources in the area was only
one of the options of the State. Indeed, it is too plain to see, x x x that before the State will settle
on an option, x x x an extensive and intensive study of all the facets of a direct state exploitation
was directed by the Public Respondent DENR Secretary. And even if direct state exploitation was
opted by the government, the DENR still had to promulgate rules and regulations to implement
the same x x x, in coordination with the other concerned agencies of the government. 17

Consequently, the petition was premature. The said memorandum order did not impose any obligation on
the claimants or fix any legal relation whatsoever between and among the parties to the dispute. At this
stage, petitioner can show no more than a mere apprehension that the State, through the DENR, would
directly take over the mines after studies point to its viability. But until the DENR actually does so and
petitioner's fears turn into reality, no valid objection can be entertained against MO 97-03 on grounds
which are purely speculative and anticipatory.18

With respect to the alleged "vested rights" claimed by petitioner, it is well to note that the same is
invariably based on EP No. 133, whose validity is still being disputed in the Consolidated Mines cases. A
reading of the appealed MAB decision reveals that the continued efficacy of EP No. 133 is one of the
issues raised in said cases, with respondents therein asserting that Marcopper cannot legally assign the
permit which purportedly had expired. In other words, whether or not petitioner actually has a vested right
over Diwalwal under EP No. 133 is still an indefinite and unsettled matter. And until a positive
pronouncement is made by the appellate court in the Consolidated Mines cases, EP No. 133 cannot be
deemed as a source of any conclusive rights that can be impaired by the issuance of MO 97-03.

Similarly, there is no merit in petitioner's assertion that MO 97-03 sanctions violation of mining laws by
allowing illegal miners  to enter into mining agreements with the State. Again, whether or not respondent
BCMC and the other mining entities it represents are conducting illegal mining activities is a factual matter
that has yet to be finally determined in the Consolidated Mines cases. We cannot rightfully conclude at
this point that respondent BCMC and the other mining firms are illegitimate mining operators. Otherwise,
we would be preempting the resolution of the cases which are still pending before the Court of Appeals. 19

Petitioner's reliance on the Apex Mining  case to justify its rights under E.P. No. 133 is misplaced. For one,
the said case was litigated solely between Marcopper and Apex Mining Corporation and cannot thus be
deemed binding and conclusive on respondent BCMC and the other mining entities presently involved.
While petitioner may be regarded as Marcopper's successor to EP No. 133 and therefore bound by the
judgment rendered in the Apex Mining  case, the same cannot be said of respondent BCMC and the other
oppositor mining firms, who were not impleaded as parties therein.

Neither can the Apex Mining case foreclose any question pertaining to the continuing validity of EP No.
133 on grounds which arose after the judgment in said case was promulgated. While it is true that
the Apex Mining case settled the issue of who between Apex and Marcopper validly acquired mining
rights over the disputed area by availing of the proper procedural requisites mandated by law, it certainly
did not deal with the question raised by the oppositors in the Consolidated Mines cases, i.e.  whether EP
No. 133 had already expired and remained valid subsequent to its transfer by Marcopper to
petitioner.  Besides, as clarified in our decision in the Apex Mining case:
 x x x is conclusive only between the parties with respect to the particular issue herein raised and
under the set of circumstances herein prevailing. In no case should the decision be considered as
a precedent to resolve or settle claims of persons/entities not parties hereto. Neither is it intended
to unsettle rights of persons/entities which have been acquired or which may have accrued upon
reliance on laws passed by appropriate agencies.20

Clearly then, the Apex Mining  case did not invest petitioner with any definite right to the Diwalwal mines
which it could now set up against respondent BCMC and the other mining groups.

Incidentally, it must likewise be pointed out that under no circumstances may petitioner's rights under EP
No. 133 be regarded as total and absolute. As correctly held by the Court of Appeals in its challenged
decision, EP No. 133 merely evidences a privilege granted by the State, which may be amended,
modified or rescinded when the national interest so requires. This is necessarily so since the exploration,
development and utilization of the country's natural mineral resources are matters impressed with great
public interest. Like timber permits, mining exploration permits do not vest in the grantee any permanent
or irrevocable right within the purview of the non-impairment of contract and due process clauses of the
Constitution,21 since the State, under its all-encompassing police power, may alter, modify or amend the
same, in accordance with the demands of the general welfare. 22

Additionally, there can be no valid opposition raised against a mere study of an alternative which the
State, through the DENR, is authorized to undertake in the first place. Worth noting is Article XII, Section
2, of the 1987 Constitution, which specifically provides:

SEC. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The State may directly
undertake such activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of
whose capital is owned by such citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, beneficial use may be the
measure and limit of the grant. (Underscoring ours)

Likewise, Section 4, Chapter II of the Philippine Mining Act of 1995 states:

SEC. 4. Ownership of Mineral Resources.  - Mineral Resources are owned by the State and the
exploration, development, utilization, and processing thereof shall be under its full control and
supervision. The State may directly undertake such activities or it may enter into mineral
agreements with contractors. (Underscoring ours)

Thus, the State may pursue the constitutional policy of full control and supervision of the exploration,
development and utilization of the country's natural mineral resources, by either directly undertaking the
same or by entering into agreements with qualified entities. The DENR Secretary acted within his
authority when he ordered a study of the first option, which may be undertaken consistently in accordance
with the constitutional policy enunciated above. Obviously, the State may not be precluded from
considering a direct takeover of the mines, if it is the only plausible remedy in sight to the gnawing
complexities generated by the gold rush. As implied earlier, the State need be guided only by the
demands of public interest in settling for this option, as well as its material and logistic feasibility.

In this regard, petitioner's imputation of bad faith on the part of the DENR Secretary when the latter
issued MO 97-03 is not well-taken. The avowed rationale of the memorandum order is clearly and plainly
stated in its "whereas" clauses. 23 In the absence of any concrete evidence that the DENR Secretary
violated the law or abused his discretion, as in this case, he is presumed to have regularly issued the
memorandum with a lawful intent and pursuant to his official functions.1âwphi1.nêt

Given these considerations, petitioner's first assigned error is baseless and premised on tentative
assumptions. Petitioner cannot claim any absolute right to the Diwalwal mines pending resolution of the
Consolidated Mines cases, much less ask us to assume, at this point, that respondent BCMC and the
other mining firms are illegal miners. These factual issues are to be properly threshed out in CA G.R. SP
Nos. 61215 and 61216, which have yet to be decided by the Court of Appeals. Any objection raised
against MO 97-03 is likewise premature at this point, inasmuch as it merely ordered a study of an option
which the State is authorized by law to undertake.

We see no need to rule on the matter of the OTPs, considering that the grounds invoked by petitioner for
invalidating the same are inextricably linked to the issues raised in the Consolidated Mines cases.

WHEREFORE, in view of the foregoing, the instant petition is DENIED. The decision of the Court of
Appeals in CA-G.R. SP No. 44693 is AFFIRMED.

SO ORDERED.

4. G.R. No. 149927             March 30, 2004

REPUBLIC OF THE PHILIPPINES, Represented by the Department of Environment and Natural

Resources (DENR)
Under then Minister ERNESTO R. MACEDA; and Former Government Officials CATALINO
MACARAIG, FULGENCIO S. FACTORAN, ANGEL C. ALCALA, BEN MALAYANG, ROBERTO
PAGDANGANAN, MARIANO Z. VALERA and ROMULO SAN JUAN, petitioners,
vs.
ROSEMOOR MINING AND DEVELOPMENT CORPORATION, PEDRO DEL CONCHA, and
ALEJANDRO and RUFO DE GUZMAN, respondents.

DECISION

PANGANIBAN, J.:

A mining license that contravenes a mandatory provision of the law under which it is granted is void.
Being a mere privilege, a license does not vest absolute rights in the holder. Thus, without offending the
due process and the non-impairment clauses of the Constitution, it can be revoked by the State in the
public interest.

The Case

Before us is a Petition for Review 1 under Rule 45 of the Rules of Court, seeking to nullify the May 29,
2001 Decision2 and the September 6, 2001 Resolution3 of the Court of Appeals (CA) in CA-GR SP No.
46878. The CA disposed as follows:

"WHEREFORE, premises considered, the appealed Decision is hereby AFFIRMED in toto." 4

The questioned Resolution denied petitioners’ Motion for Reconsideration.

On the other hand, trial court’s Decision, which was affirmed by the CA, had disposed as follows:
"WHEREFORE, judgment is hereby rendered as follows:

‘1. Declaring that the cancellation of License No. 33 was done without jurisdiction and in gross
violation of the Constitutional right of the petitioners against deprivation of their property rights
without due process of law and is hereby set aside.

‘2. Declaring that the petitioners’ right to continue the exploitation of the marble deposits in the
area covered by License No. 33 is maintained for the duration of the period of its life of twenty-
five (25) years, less three (3) years of continuous operation before License No. 33 was cancelled,
unless sooner terminated for violation of any of the conditions specified therein, with due process.

‘3. Making the Writ of preliminary injunction and the Writ of Preliminary Mandatory Injunction
issued as permanent.

‘4. Ordering the cancellation of the bond filed by the Petitioners in the sum of 1 Million.

‘5. Allowing the petitioners to present evidence in support of the damages they claim to have
suffered from, as a consequence of the summary cancellation of License No. 33 pursuant to the
agreement of the parties on such dates as maybe set by the Court; and

‘6. Denying for lack of merit the motions for contempt, it appearing that actuations of the
respondents were not contumacious and intended to delay the proceedings or undermine the
integrity of the Court.

‘No pronouncement yet as to costs.’"5

The Facts

The CA narrated the facts as follows:

"The four (4) petitioners, namely, Dr. Lourdes S. Pascual, Dr. Pedro De la Concha, Alejandro De La
Concha, and Rufo De Guzman, after having been granted permission to prospect for marble deposits in
the mountains of Biak-na-Bato, San Miguel, Bulacan, succeeded in discovering marble deposits of high
quality and in commercial quantities in Mount Mabio which forms part of the Biak-na-Bato mountain
range.

"Having succeeded in discovering said marble deposits, and as a result of their tedious efforts and
substantial expenses, the petitioners applied with the Bureau of Mines, now Mines and Geosciences
Bureau, for the issuance of the corresponding license to exploit said marble deposits.

xxxxxxxxx

"After compliance with numerous required conditions, License No. 33 was issued by the Bureau of Mines
in favor of the herein petitioners.

xxxxxxxxx

"Shortly after Respondent Ernesto R. Maceda was appointed Minister of the Department of Energy and
Natural Resources (DENR), petitioners’ License No. 33 was cancelled by him through his letter to
ROSEMOOR MINING AND DEVELOPMENT CORPORATION dated September 6, 1986 for the reasons
stated therein. Because of the aforesaid cancellation, the original petition was filed and later substituted
by the petitioners’ AMENDED PETITION dated August 21, 1991 to assail the same.
"Also after due hearing, the prayer for injunctive relief was granted in the Order of this Court dated
February 28, 1992. Accordingly, the corresponding preliminary writs were issued after the petitioners filed
their injunction bond in the amount of ONE MILLION PESOS (₱1,000,000.00).

xxxxxxxxx

"On September 27, 1996, the trial court rendered the herein questioned decision." 6

The trial court ruled that the privilege granted under respondents’ license had already ripened into a
property right, which was protected under the due process clause of the Constitution. Such right was
supposedly violated when the license was cancelled without notice and hearing. The cancellation was
said to be unjustified, because the area that could be covered by the four separate applications of
respondents was 400 hectares. Finally, according to the RTC, Proclamation No. 84, which confirmed the
cancellation of the license, was an ex post facto law; as such, it violated Section 3 of Article XVIII of the
1987 Constitution.

On appeal to the Court of Appeals, herein petitioners asked whether PD 463 or the Mineral Resources
Development Decree of 1974 had been violated by the award of the 330.3062 hectares to respondents in
accordance with Proclamation No. 2204. They also questioned the validity of the cancellation of
respondents’ Quarry License/Permit (QLP) No. 33.

Ruling of the Court of Appeals

Sustaining the trial court in toto, the CA held that the grant of the quarry license covering 330.3062
hectares to respondents was authorized by law, because the license was embraced by four (4) separate
applications -- each for an area of 81 hectares. Moreover, it held that the limitation under Presidential
Decree No. 463 -- that a quarry license should cover not more than 100 hectares in any given province --
was supplanted by Republic Act No. 7942,7 which increased the mining areas allowed under PD 463.

It also ruled that the cancellation of respondents’ license without notice and hearing was tantamount to a
deprivation of property without due process of law. It added that under the clause in the Constitution
dealing with the non-impairment of obligations and contracts, respondents’ license must be respected by
the State.

Hence, this Petition.8

Issues

Petitioners submit the following issues for the Court’s consideration:

"(1) [W]hether or not QLP No. 33 was issued in blatant contravention of Section 69, P.D. No. 463; and (2)
whether or not Proclamation No. 84 issued by then President Corazon Aquino is valid. The corollary issue
is whether or not the Constitutional prohibition against ex post facto law applies to Proclamation No. 84" 9

The Court’s Ruling

The Petition has merit.

First Issue:
Validity of License

Respondents contend that the Petition has no legal basis, because PD 463 has already been
repealed.10 In effect, they ask for the dismissal of the Petition on the ground of mootness.
PD 463, as amended, pertained to the old system of exploration, development and utilization of natural
resources through licenses, concessions or leases. 11 While these arrangements were provided under the
193512 and the 197313 Constitutions, they have been omitted by Section 2 of Article XII of the 1987
Constitution.14

With the shift of constitutional policy toward "full control and supervision of the State" over natural
resources, the Court in Miners Association of the Philippines v. Factoran Jr. 15 declared the provisions of
PD 463 as contrary to or violative of the express mandate of the 1987 Constitution. The said provisions
dealt with the lease of mining claims; quarry permits or licenses covering privately owned or public lands;
and other related provisions on lease, licenses and permits.

RA 7942 or the Philippine Mining Act of 1995 embodies the new constitutional mandate. It has repealed
or amended all laws, executive orders, presidential decrees, rules and regulations -- or parts thereof --
that are inconsistent with any of its provisions.16

It is relevant to state, however, that Section 2 of Article XII of the 1987 Constitution does not apply
retroactively to a "license, concession or lease" granted by the government under the 1973 Constitution or
before the effectivity of the 1987 Constitution on February 2, 1987. 17 As noted in Miners Association of the
Philippines v. Factoran Jr., the deliberations of the Constitutional Commission 18 emphasized the intent to
apply the said constitutional provision prospectively.

While RA 7942 has expressly repealed provisions of mining laws that are inconsistent with its own, it
nonetheless respects previously issued valid and existing licenses, as follows:

"SECTION 5. Mineral Reservations. — When the national interest so requires, such as when
there is a need to preserve strategic raw materials for industries critical to national development,
or certain minerals for scientific, cultural or ecological value, the President may establish mineral
reservations upon the recommendation of the Director through the Secretary. Mining operations
in existing mineral reservations and such other reservations as may thereafter be established,
shall be undertaken by the Department or through a contractor: Provided, That a small scale-
mining cooperative covered by Republic Act No. 7076 shall be given preferential right to apply for
a small-scale mining agreement for a maximum aggregate area of twenty-five percent (25%) of
such mineral reservation, subject to valid existing mining/quarrying rights as provided under
Section 112 Chapter XX hereof. All submerged lands within the contiguous zone and in the
exclusive economic zone of the Philippines are hereby declared to be mineral reservations.

"x x x x x x x x x

"SECTION 7. Periodic Review of Existing Mineral Reservations. — The Secretary shall

periodically review existing mineral reservations for the purpose of determining whether their
continued existence is consistent with the national interest, and upon his recommendation, the
President may, by proclamation, alter or modify the boundaries thereof or revert the same to the
public domain without prejudice to prior existing rights."

"SECTION 18. Areas Open to Mining Operations. — Subject to any existing rights or reservations
and prior agreements of all parties, all mineral resources in public or private lands, including
timber or forestlands as defined in existing laws, shall be open to mineral agreements or financial
or technical assistance agreement applications. Any conflict that may arise under this provision
shall be heard and resolved by the panel of arbitrators."

"SECTION 19. Areas Closed to Mining Applications. -- Mineral agreement or financial or technical
assistance agreement applications shall not be allowed:
 (a) In military and other government reservations, except upon prior written clearance by
the government agency concerned;

(b) Near or under public or private buildings, cemeteries, archeological and historic sites,
bridges, highways, waterways, railroads, reservoirs, dams or other infrastructure projects,
public or private works including plantations or valuable crops, except upon written
consent of the government agency or private entity concerned;

(c) In areas covered by valid and existing mining rights;

(d) In areas expressly prohibited by law;

(e) In areas covered by small-scale miners as defined by law unless with prior consent of
the small-scale miners, in which case a royalty payment upon the utilization of minerals
shall be agreed upon by the parties, said royalty forming a trust fund for the
socioeconomic development of the community concerned; and

(f) Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas,
mangrove forests, mossy forests, national parks, provincial/municipal forests, parks,
greenbelts, game refuge and bird sanctuaries as defined by law and in areas expressly
prohibited under the National Integrated Protected Areas System (NIPAS) under
Republic Act No. 7586, Department Administrative Order No. 25, series of 1992 and
other laws."

"SECTION 112. Non-impairment of Existing Mining/ Quarrying Rights. — All valid and existing
mining lease contracts, permits/licenses, leases pending renewal, mineral production-sharing
agreements granted under Executive Order No. 279, at the date of effectivity of this Act, shall
remain valid, shall not be impaired, and shall be recognized by the Government: Provided, That
the provisions of Chapter XIV on government share in mineral production-sharing agreement and
of Chapter XVI on incentives of this Act shall immediately govern and apply to a mining lessee or
contractor unless the mining lessee or contractor indicates his intention to the secretary, in
writing, not to avail of said provisions: Provided, further, That no renewal of mining lease
contracts shall be made after the expiration of its term: Provided, finally, That such leases,
production-sharing agreements, financial or technical assistance agreements shall comply with
the applicable provisions of this Act and its implementing rules and regulations.

"SECTION 113. Recognition of Valid and Existing Mining Claims and Lease/Quarry Application.
— Holders of valid and existing mining claims, lease/quarry applications shall be given
preferential rights to enter into any mode of mineral agreement with the government within two (2)
years from the promulgation of the rules and regulations implementing this Act." (Underscoring
supplied)

Section 3(p) of RA 7942 defines an existing mining/quarrying right as "a valid and subsisting mining claim
or permit or quarry permit or any mining lease contract or agreement covering a mineralized area
granted/issued under pertinent mining laws." Consequently, determining whether the license of
respondents falls under this definition would be relevant to fixing their entitlement to the rights and/or
preferences under RA 7942. Hence, the present Petition has not been mooted.

Petitioners submit that the license clearly contravenes Section 69 of PD 463, because it exceeds the
maximum area that may be granted. This incipient violation, according to them, renders the license void
ab initio.

Respondents, on the other hand, argue that the license was validly granted, because it was covered by
four separate applications for areas of 81 hectares each.
The license in question, QLP No. 33, 19 is dated August 3, 1982, and it was issued in the name of
Rosemoor Mining Development Corporation. The terms of the license allowed the corporation to extract
and dispose of marbleized limestone from a 330.3062-hectare land in San Miguel, Bulacan. The license
is, however, subject to the terms and conditions of PD 463, the governing law at the time it was granted;
as well as to the rules and regulations promulgated thereunder. 20 By the same token, Proclamation No.
2204 -- which awarded to Rosemoor the right of development, exploitation, and utilization of the mineral
site -- expressly cautioned that the grant was subject to "existing policies, laws, rules and regulations." 21

The license was thus subject to Section 69 of PD 463, which reads:

"Section 69. Maximum Area of Quarry License – Notwithstanding the provisions of Section 14
hereof, a quarry license shall cover an area of not more than one hundred (100) hectares in any
one province and not more than one thousand (1,000) hectares in the entire Philippines." (Italics
supplied)

The language of PD 463 is clear. It states in categorical and mandatory terms that a quarry license, like
that of respondents, should cover a maximum of 100 hectares in any given province. This law neither
provides any exception nor makes any reference to the number of applications for a license. Section 69 of
PD 463 must be taken to mean exactly what it says. Where the law is clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without attempted interpretation. 22

Moreover, the lower courts’ ruling is evidently inconsistent with the fact that QLP No. 33 was issued solely
in the name of Rosemoor Mining and Development Corporation, rather than in the names of the four
individual stockholders who are respondents herein. It likewise brushes aside a basic postulate that a
corporation has a separate personality from that of its stockholders. 23

The interpretation adopted by the lower courts is contrary to the purpose of Section 69 of PD 463. Such
intent to limit, without qualification, the area of a quarry license strictly to 100 hectares in any one province
is shown by the opening proviso that reads: "Notwithstanding the provisions of Section 14 hereof x x x."
The mandatory nature of the provision is also underscored by the use of the word shall. Hence, in the
application of the 100-hectare-per-province limit, no regard is given to the size or the number of mining
claims under Section 14, which we quote:

"SECTION 14. Size of Mining Claim. -- For purposes of registration of a mining claim under this
Decree, the Philippine territory and its shelf are hereby divided into meridional blocks or
quadrangles of one-half minute (1/2) of latitude and longitude, each block or quadrangle
containing area of eighty-one (81) hectares, more or less.

"A mining claim shall cover one such block although a lesser area may be allowed if warranted by
attendant circumstances, such as geographical and other justifiable considerations as may be
determined by the Director: Provided, That in no case shall the locator be allowed to register
twice the area allowed for lease under Section 43 hereof." (Italics supplied)

Clearly, the intent of the law would be brazenly circumvented by ruling that a license may cover an area
exceeding the maximum by the mere expediency of filing several applications. Such ruling would
indirectly permit an act that is directly prohibited by the law.

Second Issue:
Validity of Proclamation No. 84

Petitioners also argue that the license was validly declared a nullity and consequently withdrawn or
terminated. In a letter dated September 15, 1986, respondents were informed by then Minister Ernesto M.
Maceda that their license had illegally been issued, because it violated Section 69 of PD 463; and that
there was no more public interest served by the continued existence or renewal of the license. The latter
reason, they added, was confirmed by the language of Proclamation No. 84. According to this law, public
interest would be served by reverting the parcel of land that was excluded by Proclamation No. 2204 to
the former status of that land as part of the Biak-na-Bato national park.

They also contend that Section 74 of PD 463 would not apply, because Minister Maceda’s letter did not
cancel or revoke QLP No. 33, but merely declared the latter’s nullity. They further argue that respondents
waived notice and hearing in their application for the license.

On the other hand, respondents submit that, as provided for in Section 74 of PD 463, their right to due
process was violated when their license was cancelled without notice and hearing. They likewise contend
that Proclamation No. 84 is not valid for the following reasons: 1) it violates the clause on the non-
impairment of contracts; 2) it is an ex post facto law and/or a bill of attainder; and 3) it was issued by the
President after the effectivity of the 1987 Constitution.

This Court ruled on the nature of a natural resource exploration permit, which was akin to the present
respondents’ license, in Southeast Mindanao Gold Mining Corporation v. Balite Portal Mining
Cooperative,24 which held:

"x x x. As correctly held by the Court of Appeals in its challenged decision, EP No. 133 merely
evidences a privilege granted by the State, which may be amended, modified or rescinded when
the national interest so requires. This is necessarily so since the exploration, development and
utilization of the country’s natural mineral resources are matters impressed with great public
interest. Like timber permits, mining exploration permits do not vest in the grantee any permanent
or irrevocable right within the purview of the non-impairment of contract and due process clauses
of the Constitution, since the State, under its all-encompassing police power, may alter, modify or
amend the same, in accordance with the demands of the general welfare." 25

This same ruling had been made earlier in Tan v. Director of Forestry 26 with regard to a timber license, a
pronouncement that was reiterated in Ysmael v. Deputy Executive Secretary, 27 the pertinent portion of
which reads:

"x x x. Timber licenses, permits and license agreements are the principal instruments by which
the State regulates the utilization and disposition of forest resources to the end that public welfare
is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the
State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the
particular concession area and the forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when national interests so require. Thus,
they are not deemed contracts within the purview of the due process of law clause [See Sections
3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-
24548, October 27, 1983, 125 SCRA 302]."28 (Italics supplied)

In line with the foregoing jurisprudence, respondents’ license may be revoked or rescinded by executive
action when the national interest so requires, because it is not a contract, property or a property right
protected by the due process clause of the Constitution. 29 Respondents themselves acknowledge this
condition of the grant under paragraph 7 of QLP No. 33, which we quote:

"7. This permit/license may be revoked or cancelled at any time by the Director of Mines and
Geo-Sciences when, in his opinion public interests so require or, upon failure of the
permittee/licensee to comply with the provisions of Presidential Decree No. 463, as amended,
and the rules and regulations promulgated thereunder, as well as with the terms and conditions
specified herein; Provided, That if a permit/license is cancelled, or otherwise terminated, the
permittee/licensee shall be liable for all unpaid rentals and royalties due up to the time of the
termination or cancellation of the permit/license[.]"30 (Italics supplied)
The determination of what is in the public interest is necessarily vested in the State as owner of all
mineral resources. That determination was based on policy considerations formally enunciated in the
letter dated September 15, 1986, issued by then Minister Maceda and, subsequently, by the President
through Proclamation No. 84. As to the exercise of prerogative by Maceda, suffice it to say that while the
cancellation or revocation of the license is vested in the director of mines and geo-sciences, the latter is
subject to the former’s control as the department head. We also stress the clear prerogative of the
Executive Department in the evaluation and the consequent cancellation of licenses in the process of its
formulation of policies with regard to their utilization. Courts will not interfere with the exercise of that
discretion without any clear showing of grave abuse of discretion. 31

Moreover, granting that respondents’ license is valid, it can still be validly revoked by the State in the
exercise of police power.32 The exercise of such power through Proclamation No. 84 is clearly in accord
with jura regalia, which reserves to the State ownership of all natural resources. 33 This Regalian doctrine
is an exercise of its sovereign power as owner of lands of the public domain and of the patrimony of the
nation, the mineral deposits of which are a valuable asset. 34

Proclamation No. 84 cannot be stigmatized as a violation of the non-impairment clause. As pointed out
earlier, respondents’ license is not a contract to which the protection accorded by the non-impairment
clause may extend.35 Even if the license were, it is settled that provisions of existing laws and a
reservation of police power are deemed read into it, because it concerns a subject impressed with public
welfare.36 As it is, the non-impairment clause must yield to the police power of the state. 37

We cannot sustain the argument that Proclamation No. 84 is a bill of attainder; that is, a "legislative act
which inflicts punishment without judicial trial." 38 Its declaration that QLP No. 33 is a patent nullity 39 is
certainly not a declaration of guilt. Neither is the cancellation of the license a punishment within the
purview of the constitutional proscription against bills of attainder.

Too, there is no merit in the argument that the proclamation is an ex post facto law. There are six
recognized instances when a law is considered as such: 1) it criminalizes and punishes an action that
was done before the passing of the law and that was innocent when it was done; 2) it aggravates a crime
or makes it greater than it was when it was committed; 3) it changes the punishment and inflicts one that
is greater than that imposed by the law annexed to the crime when it was committed; 4) it alters the legal
rules of evidence and authorizes conviction upon a less or different testimony than that required by the
law at the time of the commission of the offense; 5) it assumes the regulation of civil rights and remedies
only, but in effect imposes a penalty or a deprivation of a right as a consequence of something that was
considered lawful when it was done; and 6) it deprives a person accused of a crime of some lawful
protection to which he or she become entitled, such as the protection of a former conviction or an
acquittal or the proclamation of an amnesty. 40 Proclamation No. 84 does not fall under any of the
enumerated categories; hence, it is not an ex post facto law.

It is settled that an ex post facto law is limited in its scope only to matters criminal in
nature.41 Proclamation 84, which merely restored the area excluded from the Biak-na-Bato national park
by canceling respondents’ license, is clearly not penal in character.

Finally, it is stressed that at the time President Aquino issued Proclamation No. 84 on March 9, 1987, she
was still validly exercising legislative powers under the Provisional Constitution of 1986. 42 Section 1 of
Article II of Proclamation No. 3, which promulgated the Provisional Constitution, granted her legislative
power "until a legislature is elected and convened under a new Constitution." The grant of such power is
also explicitly recognized and provided for in Section 6 of Article XVII of the 1987 Constitution. 43

WHEREFORE, this Petition is hereby GRANTED and the appealed Decision of the Court of Appeals SET
ASIDE. No costs.

SO ORDERED.
 5. REPUBLIC OF THE PHILIPPINES, Petitioner,

- versus -

JENNIFER B. CAGANDAHAN, Respondent.

G.R. No. 166676

Present:

Quisumbing, J., Chairperson,

Carpio Morales,

Tinga,

VELASCO, JR., and

BRION, JJ.

Promulgated:

September 12, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and
seeking a reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33
of Siniloan, Laguna, which granted the Petition for Correction of Entries in Birth Certificate filed by
Jennifer B. Cagandahan and ordered the following changes of entries in Cagandahan’s birth certificate:
(1) the name "Jennifer Cagandahan" changed to "Jeff Cagandahan" and (2) gender from "female" to
"male."

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in
Birth Certificate2 before the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the
Certificate of Live Birth but while growing up, she developed secondary male characteristics and was
diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus
afflicted possess both male and female characteristics. She further alleged that she was diagnosed to
have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was
discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had
minimized, she has stopped growing and she has no breast or menstrual development. She then alleged
that for all interests and appearances as well as in mind and emotion, she has become a male person.
Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to
male and her first name be changed from Jennifer to Jeff.
The petition was published in a newspaper of general circulation for three (3) consecutive weeks and
was posted in conspicuous places by the sheriff of the court. The Solicitor General entered his
appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the
Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued
a medical certificate stating that respondent’s condition is known as CAH. He explained that genetically
respondent is female but because her body secretes male hormones, her female organs did not develop
normally and she has two sex organs – female and male. He testified that this condition is very rare,
that respondent’s uterus is not fully developed because of lack of female hormones, and that she has
no monthly period. He further testified that respondent’s condition is permanent and recommended
the change of gender because respondent has made up her mind, adjusted to her chosen role as male,
and the gender change would be advantageous to her.

The RTC granted respondent’s petition in a Decision dated January 12, 2005 which reads:

The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs prayed
[for]. Petitioner has adequately presented to the Court very clear and convincing proofs for the granting
of his petition. It was medically proven that petitioner’s body produces male hormones, and first his
body as well as his action and feelings are that of a male. He has chosen to be male. He is a normal
person and wants to be acknowledged and identified as a male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to make the
following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the prescribed
fees:

a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioner’s school records, voter’s registry, baptismal certificate, and other
pertinent records are hereby amended to conform with the foregoing corrected data.

SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned
ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:

I.

THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN COMPLIED
WITH; AND,

II.

CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX" OR "GENDER" IN THE
BIRTH CERTIFICATE, WHILE RESPONDENT’S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A "MALE."4
Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth
certificate of respondent to change her sex or gender, from female to male, on the ground of her
medical condition known as CAH, and her name from "Jennifer" to "Jeff," under Rules 103 and 108 of
the Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and
108 of the Rules of Court because while the local civil registrar is an indispensable party in a petition for
cancellation or correction of entries under Section 3, Rule 108 of the Rules of Court, respondent’s
petition before the court a quo did not implead the local civil registrar.5 The OSG further contends
respondent’s petition is fatally defective since it failed to state that respondent is a bona fide resident
of the province where the petition was filed for at least three (3) years prior to the date of such filing as
mandated under Section 2(b), Rule 103 of the Rules of Court.6 The OSG argues that Rule 108 does not
allow change of sex or gender in the birth certificate and respondent’s claimed medical condition
known as CAH does not make her a male.7

On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not
formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil
Registrar was furnished a copy of the Petition, the Order to publish on December 16, 2003 and all
pleadings, orders or processes in the course of the proceedings,8 respondent is actually a male person
and hence his birth certificate has to be corrected to reflect his true sex/gender,9 change of sex or
gender is allowed under Rule 108,10 and respondent substantially complied with the requirements of
Rules 103 and 108 of the Rules of Court.11

Rules 103 and 108 of the Rules of Court provide:

Rule 103

CHANGE OF NAME

Section 1. Venue. – A person desiring to change his name shall present the petition to the Regional Trial
Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic
Relations Court].

Sec. 2. Contents of petition. – A petition for change of name shall be signed and verified by the person
desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is filed for at
least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

Sec. 3. Order for hearing. – If the petition filed is sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct
that a copy of the order be published before the hearing at least once a week for three (3) successive
weeks in some newspaper of general circulation published in the province, as the court shall deem best.
The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4)
months after the last publication of the notice.

Sec. 4. Hearing. – Any interested person may appear at the hearing and oppose the petition. The
Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the
Republic.
Sec. 5. Judgment. – 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.

Sec. 6. Service of judgment. – Judgments or orders rendered in connection with this rule shall be
furnished the civil registrar of the municipality or city where the court issuing the same is situated, who
shall forthwith enter the same in the civil register.

Rule 108

CANCELLATION OR CORRECTION OF ENTRIES

IN THE CIVIL REGISTRY

Section 1. Who may file petition. – Any person interested in any act, event, order or decree concerning
the civil status of persons which has been recorded in the civil register, may file a verified petition for
the cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province
where the corresponding civil registry is located.

Sec. 2. Entries subject to cancellation or correction. – Upon good and valid grounds, the following
entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal
separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the
beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization;
(k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation;
(n) voluntary emancipation of a minor; and (o) changes of name.

Sec. 3. Parties. – When cancellation or correction of an entry in the civil register is sought, the civil
registrar and all persons who have or claim any interest which would be affected thereby shall be made
parties to the proceeding.

Sec. 4. Notice and publication. – Upon the filing of the petition, the court shall, by an order, fix the time
and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province.

Sec. 5. Opposition. – The civil registrar and any person having or claiming any interest under the entry
whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice, file his opposition thereto.

Sec. 6. Expediting proceedings. – The court in which the proceedings is brought may make orders
expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights
of the parties pending such proceedings.

Sec. 7. Order. – After hearing, the court may either dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served
upon the civil registrar concerned who shall annotate the same in his record.

The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108
of the Rules of Court because respondent’s petition did not implead the local civil registrar. Section 3,
Rule 108 provides that the civil registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceedings. Likewise, the local civil registrar is required
to be made a party in a proceeding for the correction of name in the civil registry. He is an
indispensable party without whom no final determination of the case can be had.[12] Unless all
possible indispensable parties were duly notified of the proceedings, the same shall be considered as
falling much too short of the requirements of the rules.13 The corresponding petition should also
implead as respondents the civil registrar and all other persons who may have or may claim to have any
interest that would be affected thereby.14 Respondent, however, invokes Section 6,[15] Rule 1 of the
Rules of Court which states that courts shall construe the Rules liberally to promote their objectives of
securing to the parties a just, speedy and inexpensive disposition of the matters brought before it. We
agree that there is substantial compliance with Rule 108 when respondent furnished a copy of the
petition to the local civil registrar.

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must
look to the statutes. In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No.
9048[17] in so far as clerical or typographical errors are involved. The correction or change of such
matters can now be made through administrative proceedings and without the need for a judicial
order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies only to substantial changes and corrections in entries in
the civil register.18

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere
clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108
of the Rules of Court.19

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code:

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in
the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those
that occur after birth.20

Respondent undisputedly has CAH. This condition causes the early or "inappropriate" appearance of
male characteristics. A person, like respondent, with this condition produces too much androgen, a
male hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1) swollen
clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male than
female; (2) normal internal structures of the female reproductive tract such as the ovaries, uterus and
fallopian tubes; as the child grows older, some features start to appear male, such as deepening of the
voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born
with CAH.
CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century,
medicine adopted the term "intersexuality" to apply to human beings who cannot be classified as
either male or female.[22] The term is now of widespread use. According to Wikipedia, intersexuality
"is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or
secondary sex characteristics are determined to be neither exclusively male nor female. An organism
with intersex may have biological characteristics of both male and female sexes."

Intersex individuals are treated in different ways by different cultures. In most societies, intersex
individuals have been expected to conform to either a male or female gender role.[23] Since the rise of
modern medical science in Western societies, some intersex people with ambiguous external genitalia
have had their genitalia surgically modified to resemble either male or female genitals.[24] More
commonly, an intersex individual is considered as suffering from a "disorder" which is almost always
recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold
the individual as neatly as possible into the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various degrees of
intersex as variations which should not be subject to outright denial. "It has been suggested that there
is some middle ground between the sexes, a ‘no-man’s land’ for those individuals who are neither truly
‘male’ nor truly ‘female’."[25] The current state of Philippine statutes apparently compels that a person
be classified either as a male or as a female, but this Court is not controlled by mere appearances when
nature itself fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a change in
the birth certificate entry for gender. But if we determine, based on medical testimony and scientific
development showing the respondent to be other than female, then a change in the

subject’s birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female
nor consistently and categorically male) composition. Respondent has female (XX) chromosomes.
However, respondent’s body system naturally produces high levels of male hormones (androgen). As a
result, respondent has ambiguous genitalia and the phenotypic features of a male.

Ultimately, we are of the view that where the person is biologically or naturally intersex the
determining factor in his gender classification would be what the individual, like respondent, having
reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself
as a male and considering that his body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being male. Sexual development in cases of
intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender
of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or
interfere with what he was born with. And accordingly, he has already ordered his life to that of a male.
Respondent could have undergone treatment and taken steps, like taking lifelong medication,[26] to
force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has
instead taken its due course in respondent’s development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so
innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo
medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as
having erred in not choosing to undergo treatment in order to become or remain as a female. Neither
will the Court force respondent to undergo treatment and to take medication in order to fit the mold of
a female, as society commonly currently knows this gender of the human species. Respondent is the
one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the primordial choice of what courses of action to
take along the path of his sexual development and maturation. In the absence of evidence that
respondent is an "incompetent"[27] and in the absence of evidence to show that classifying respondent
as a male will harm other members of society who are equally entitled to protection under the law, the
Court affirms as valid and justified the respondent’s position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual
deals with what nature has handed out. In other words, we respect respondent’s congenital condition
and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but
respect how respondent deals with his unordinary state and thus help make his life easier, considering
the unique circumstances in this case.

As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a
matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the
consequences that will follow.[28] The trial court’s grant of respondent’s change of name from Jennifer
to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that
respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s
change of name. Such a change will conform with the change of the entry in his birth certificate from
female to male.

WHEREFORE, the Republic’s petition is DENIED. The Decision dated January 12, 2005 of the Regional
Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.
 6. FIRST DIVISION

G.R. No. 207942, January 12, 2015

YINLU BICOL MINING CORPORATION, Petitioner, v. TRANS-ASIA OIL AND

ENERGY DEVELOPMENT CORPORATION, Respondent.

DECISION

BERSAMIN, J.:

Rights pertaining to mining patents issued pursuant to the Philippine Bill of 1902 and
existing prior to November 15, 1935 are vested rights that cannot be impaired. cralawred

Antecedents

This case involves 13 mining claims over the area located in Barrio Larap, Municipality
of Jose Panganiban, Camarines Norte, a portion of which was owned and mined by
Philippine Iron Mines, Inc. (PIMI), which  ceased operations in 1975 due to financial
losses. PIMI’s portion (known as the PIMI Larap Mines) was sold in a foreclosure sale to
the Manila Banking Corporation (MBC) and Philippine Commercial and Industrial Bank
(PCIB, later Banco De Oro, or BDO).1 chanRoblesvirtualLawlibrary

In 1976, the Gold Mining Development Project Team, Mining Technology Division, The
Mining Group of the Bureau of Mines prepared a so-called Technical Feasibility Study on
the Possible Re-Opening of the CPMI Project of PIM (Mining Aspect) and the Exploration
Program (Uranium Project) at Larap, Jose Panganiban, Camarines Norte, which
discussed in detail, among others, an evaluation of the ore reserve and a plan of
operation to restore the mine to normal commercial mining production and budgetary
estimate should the Bureau of Mines take over and run the PIMI Larap Mines. The
Government then opened the area for exploration. In November 1978, the Benguet
Corporation-Getty Oil Consortium began exploration for uranium under an Exploration
Permit of the area, but withdrew in 1982 after four years of sustained and earnest
exploration.2
chanRoblesvirtualLawlibrary

Trans-Asia Oil and Energy Development Corporation (Trans-Asia) then explored the
area from 1986 onwards. In 1996, it entered into an operating agreement with Philex
Mining Corporation over the area, their agreement being duly registered by the Mining
Recorder Section of Regional Office No. V of the Department of Environment and
Natural Resources (DENR). In 1997, Trans-Asia filed an application for the approval of
Mineral Production Sharing Agreement (MPSA)3 over the area in that Regional Office of
the DENR, through the Mines and Geosciences Bureau (MGB), in Daraga, Albay. The
application, which was amended in 1999, was granted on July 28, 2007 under MPSA
No. 252-2007-V, by which Trans-Asia was given the exclusive right to explore, develop
and utilize the mineral deposits in the portion of the mineral lands.4 chanRoblesvirtualLawlibrary
On August 31, 2007, Yinlu Bicol Mining Corporation (Yinlu) informed the DENR by letter
that it had acquired the mining patents of PIMI from MBC/BDO by way of a deed of
absolute sale, stating that the areas covered by its mining patents were within the
areas of Trans-Asia’s MPSA. Based on the documents submitted by Yinlu, four of the six
transfer certificates of title (TCTs) it held covered four mining claims under Patent Nos.
15, 16, 17 and 18 respectively named as Busser, Superior, Bussamer and Rescue
Placer Claims, with an aggregate area of 192 hectares. The areas covered occupied
more than half of the MPSA area of Trans-Asia.5
chanRoblesvirtualLawlibrary

On September 14, 2007, Trans-Asia informed Yinlu by letter that it would commence
exploration works in Yinlu’s areas pursuant to the MPSA, and requested Yinlu to allow
its personnel to access the areas for the works to be undertaken. On September 23,
2007, Yinlu replied that Trans-Asia could proceed with its exploration works on its own
private property in the Calambayungan area, not in the areas covered by its (Yinlu)
mining patents.6  This response of Yinlu compelled Trans-Asia to seek the assistance of
the MGB Regional Office V in resolving the issues between the parties. It was at that
point that Trans-Asia learned that the registration of its MPSA had been put on hold
because of Yinlu’s request to register the deed of absolute sale in its favor.7 chanRoblesvirtualLawlibrary

The matter was ultimately referred to the DENR Secretary, who directed the MGB
Regional Office V to verify the validity of the mining patents of Yinlu. On November 29,
2007, the MGB Regional Office V informed the Office of the DENR Secretary that there
was no record on file showing the existence of the mining patents of Yinlu. Accordingly,
the parties were required to submit their respective position papers. 8 chanRoblesvirtualLawlibrary

The issues presented for consideration and resolution by the DENR Secretary were: (1)
whether the mining patents held by Yinlu were issued prior to the grant of the MPSA;
and (2) whether the mining patents were still valid and subsisting.9 chanRoblesvirtualLawlibrary

On May 21, 2009, DENR Secretary Jose L. Atienza, Jr. issued his  order resolving the
issues in Yinlu’s favor,10 finding that the mining patents had been issued to PIMI in
1930 as evidenced by and indicated in PIMI’s certificates of title submitted by Yinlu;
and that the patents were validly transferred to and were now owned by Yinlu. 11 He
rejected Trans-Asia’s argument that Yinlu’s patents had no effect and were deemed
abandoned because Yinlu had failed to register them pursuant to Section 101 of
Presidential Decree No. 463, as amended. He declared that the DENR did not issue any
specific order cancelling such patents. He refuted Trans-Asia’s contention that there
was a continuing requirement under the Philippine Bill of 1902 for the mining patent
holder to undertake improvements in order to have the patents subsist, and that Yinlu
failed to perform its obligation to register and to undertake the improvement, observing
that the requirement was not an absolute imposition. He noted that the suspension of
PIMI’s operation in 1974 due to financial losses and the foreclosure of its mortgaged
properties by the creditor banks (MBC/PCIB) constituted force majeure that justified
PIMI’s failure in 1974 to comply with the registration requirement under P.D. No. 463;
that the Philippine Bill of 1902, which was the basis for issuing the patents, allowed the
private ownership of minerals, rendering the minerals covered by the patents to be
segregated from the public domain and be considered private property; and that the
Regalian doctrine, under which the State owned all natural resources, was adopted only
by the 1935, 1973 and 1987 Constitutions. 12
chanRoblesvirtualLawlibrary
Consequently, DENR Secretary Atienza, Jr. ordered the amendment of Trans-Asia’s
MPSA by excluding therefrom the mineral lands covered by Yinlu’s mining patents, to
wit:
chanroblesvirtuallawlibrary

WHEREFORE, premises considered, the Mineral Production Sharing Agreement No. 252-
2007-V is hereby ordered amended, to excise therefrom the areas covered by the
mining patents of Yinlu Bicol Mining Corporation as described and defined in the
Transfer Certificates of Title concerned: Provided, That the consequent conduct of
mining operations in the said mining patents shall be undertaken in accordance with all
the pertinent requirements of Republic Act No. 7942, the Philippine Mining Act of 1995,
and its implementing rules and regulations.

SO ORDERED.13

Trans-Asia moved for reconsideration,,14 but the DENR Secretary denied the motion on
November 27, 2009, holding in its resolution that the arguments raised by the motion
only rehashed matters already decided.15 chanRoblesvirtualLawlibrary

Trans-Asia appealed to the Office of the President (OP).

On May 4, 2010, the OP rendered its decision in O.P. Case No. 09-L-638 affirming in
toto the assailed order and resolution of the DENR Secretary,16 to wit: chanroblesvirtuallawlibrary

The first contention of appellee is untenable. It is conceded that Presidential Decree

(PD) No. 463, otherwise known as the Mineral Resources Development Decree,
prescribed requirements for the registration of all mining patents with the Director of
Mines within a certain period, among others. The existence of the mining claims were in
fact registered in the Office of the Register of Deeds for the Camarines Norte prior to
the issuance of PD 463, as found in the 4 TCT’s issued to PIMI that were foreclosed by
MBC, and eventually purchased by appellee through an Absolute Deed of Sale. The
existence of the mining patents, therefore, subsists. Under the Philippine Constitution,
there is an absolute prohibition against alienation of natural resources. Mining locations
may only be subject to concession or lease. The only exception is where a location of a
mining claim was perfected prior to November 15, 1935, when the government under
the 1935 Constitution was inaugurated, and according to the laws existing at that time
a valid location of a mining claim segregated the area from the public domain, and the
locator is entitled to a grant of the beneficial ownership of the claim and the right to a
patent therefore (Gold Creek Mining Corporation vs. Rodriguez, 66 Phil 259). The
right of the locator to the mining patent is a vested right, and the Constitution
recognizes such right as an exception to the prohibition against alienation of natural
resources. The right of the appellee as the beneficial owner of the subject mining
patents in this case, therefore, is superior to the claims of appellant.

The existence of the TCT’s in the name of appellee further bolsters the existence of the
mining patents. Under PD 1529, also known as the Property Registration Decree, once a
title is cleared of all claims or where none exists, the ownership over the real property
covered by the Torrens title becomes conclusive and indefeasible even as against the
government. Noteworthy is the fact that the title trace backs of the said TCTs show that
the titles were executed in favour of the appellee’s predecessors-in-interest pursuant to
Act No. 496, otherwise known as the Land Registration Act of 1902, in relation to the
Philippine Bill of 1902, which govern the registration of mineral patents.

x x x x

After a careful and thorough evaluation and study of the records of this case, this Office
agrees with the DENR, as the assailed decisions are in accord with facts, law and
jurisprudence relevant to the case. chanrobleslaw

WHEREFORE, premises considered, the assailed Order and Resolution of the DENR
dated May 21, 2009 and November 27, 2009, respectively, are hereby AFFIRMED in
toto.

SO ORDERED.17

Trans-Asia filed a first and a second motion for reconsideration.

Trans-Asia stated in its first motion for reconsideration that the OP erred: (1) in
resurrecting Yinlu’s mining patents despite failure to comply with the requirements of
Presidential Decree No. 463; (2) in holding that Yinlu’s predecessors-in-interest had
continued to assert their rights to the mining patents; and (3) in not holding that the
mining patent had been abandoned due to laches. The OP denied the first motion
through the resolution dated June 29, 2010,18 emphasizing that there was no cogent
reason to disturb the decision because the grounds were mere reiterations of
arguments already passed upon and resolved.

Nothing daunted, Trans-Asia presented its second motion for reconsideration, but this
motion was similarly denied in the resolution of March 31, 2011, 19 the OP disposing
thusly:chanroblesvirtuallawlibrary

x x x x

After a second thorough evaluation and study of the records of this case, this Office
finds no cogent reason to disturb its earlier Decision. The second paragraph of Section
7, Administrative Order No. 18 dated February 12, 1987 provides that “[o]nly one
motion for reconsideration by any one party shall be allowed and entertained, save in
exceptionally meritorious cases.” This second motion is clearly unmeritorious.

WHEREFORE, premises considered, the instant motion is hereby DENIED. The Decision
and Resolution of this Office dated May 4, 2010 and June 29, 2010, respectively,
affirming the DENR decisions, are hereby declared final. Let the records of the case be
transmitted to the DENR for its appropriate disposition.

SO ORDERED.20

Trans-Asia then appealed to the Court of Appeals (CA).

On October 30, 2012, the CA promulgated the assailed decision reversing and setting
aside the rulings of the DENR Secretary and the OP.21  It agreed with the DENR
Secretary and the OP that Yinlu held mining patents over the disputed mining areas,
but ruled that Yinlu was required to register the patents under PD No. 463 in order for
the patents to be recognized in its favor. It found that Yinlu and its predecessors-in-
interest did not register the patents pursuant to PD No. 463; hence, the patents lapsed
and had no more effect,22viz: chanroblesvirtuallawlibrary

WHEREFORE, premises considered, the petition is hereby GRANTED. The Decision

dated May 4, 2010, as well as the Resolutions dated June 29, 2010 and March 31,
2011, respectively, rendered by the Office of the President in OP Case No. 09-L-638,
and the Order dated May 21, 2009 as well as the Resolution dated November 27, 2009
issued by the DENR Secretary in DENR Case No. 8766 are REVERSED and SET ASIDE.

SO ORDERED.23

Yinlu sought reconsideration of the decision. On June 27, 2013, the CA denied the
motion for reconsideration.24chanRoblesvirtualLawlibrary

Issues

In its appeal, Yinlu raises the following issues, namely: chanroblesvirtuallawlibrary

I.

WHETHER OR NOT THE PETITION FOR CERTIORARI FILED BEFORE THE COURT OF
APPEALS WAS FILED BEYOND THE REGLEMENTARY PERIOD. cralawred

II.

WHETHER OR NOT PETITIONER YINLU’S MINING PATENTS ARE VALID, EXISTING AND
IMPERVIOUS TO THE MINERAL PRODUCTION SHARING AGREEMENT SUBSEQUENTLY
GRANTED TO THE RESPONDENT TRANS-ASIA. cralawred

III.

WHETHER OR NOT PETITIONER YINLU’S TITLES BASED ON “PATENTS” WERE MINING

PATENTS OR SOME OTHER PATENT. cralawred

IV.

WHETHER OR NOT PETITIONER YINLU’S PURCHASE OF ITS TITLES INCLUDED

PURCHASE OF THE MINERALS FOUND THEREIN. cralawred

V.

WHETHER OR NOT THE COURT OF APPEALS DISREGARDED CONSTITUTIONAL RIGHT

OF PETITIONER YINLU THAT IT’S PRIVATE PROPERTY SHALL NOT BE TAKEN FOR
PUBLIC USE WITHOUT JUST COMPENSATION. cralawred

VI.

WHETHER OR NOT THE PRINCIPLE OF LACHES APPLY TO TITLED PROPERTY. cralawred

VII.

WHETHER OR NOT THE SHARE OF THE REPUBLIC OF THE PHILIPPINES IN ITS NATURAL
RESOURCES WAS AFFECTED BY THE MINING PATENTS OF PETITIONER YINLU.25

Ruling

The petition is meritorious. cralawred

I
Procedural Issue:
Tardiness of Trans-Asia’s Appeal

Yinlu contends that the CA should have outrightly dismissed Trans-Asia’s appeal for
being taken beyond the required period for appealing; and that Trans-Asia’s filing of the
second motion for reconsideration was improper inasmuch as the motion did not cite
any exceptional circumstances or reasons as required by Section 7 of the OP’s
Administrative Order No. 18 Series of 1987.26chanRoblesvirtualLawlibrary

The contention of Yinlu is correct.

Section 1,27 Rule 43 of the Rules of Court provides that a judgment rendered by the OP

in the exercise of its quasi-judicial function is appealable to the CA.  Section 428 of the
Rule states that the appeal must be taken within 15 days “from notice of the award,
judgment, final order or resolution, or from the date of its last publication, if publication
is required by law for its effectivity, or of the denial of petitioner’s motion for new trial
or reconsideration x x x.”

Trans-Asia received a copy of the OP resolution dated June 29, 2010 denying the first
motion for reconsideration on July 14, 2010.29 Hence, it had until July 29, 2010 to
appeal to the CA by petition for review. However, it filed the petition for review only on
May 11, 2011,30 or nearly 10 months from its receipt of the denial. Under the
circumstances, its petition for review was filed way beyond the prescribed 15-day
period.

The CA opined that Trans-Asia’s petition for review was timely filed, citing the fact that
Trans-Asia filed its second motion for reconsideration dated July 20, 2010 which the OP
denied through the resolution dated March 31, 2011. It pointed out that Trans-Asia
received a copy of the resolution dated March 31, 2011 on April 26, 2011; hence, the
15-day appeal period should be reckoned from April 26, 2011, rendering its filing of the
petition for review in the CA on May 11, 2011 timely and within the required period. It
observed that Trans-Asia’s filing of the second motion for reconsideration was allowed
under Section 7 of Administrative Order No. 18 of the OP Rules on Appeal because the
second motion was exceptionally meritorious, not pro forma, for, even if the motion
reiterated issues already passed upon by the OP, that alone did not render the
motion pro forma if it otherwise complied with the rules.31 chanRoblesvirtualLawlibrary

It is true that Section 7 of Administrative Order No. 18 of the OP Rules on Appeal

authorizes the filing of a second motion for reconsideration. But that authority is
conditioned upon the second motion being upon a highly meritorious ground.32 The rule
remains to be only one motion for reconsideration is allowed.  In that regard, the Court
stresses that the determination of whether or not the ground raised in the second
motion for reconsideration was exceptionally meritorious lies solely belonged to the
OP.33 The CA could not usurp the OP’s determination in order to make its own.

As earlier indicated, the OP found and declared the second motion for reconsideration of
Trans-Asia “clearly unmeritorious” when it denied the motion on March 31, 2011.
Consequently, the filing of the second motion for reconsideration on July 20, 2010 did
not stop the running of the appeal period that had commenced on July 14, 2010, the
date of receipt by Trans-Asia of the OP resolution denying the first motion for
reconsideration. The decision of the OP inevitably became final and immutable as a
matter of law by July 29, 2010, the last day of the reglementary period under Section 4
of Rule 43.

In taking cognizance of Trans-Asia’s appeal despite its tardiness, therefore, the CA

gravely erred. Under Section 4 of Rule 43, the reckoning of the 15-day period to perfect
the appeal starts from the receipt of the resolution denying the motion for
reconsideration. Section 4 specifically allows only one motion for reconsideration to an
appealing party; as such, the reckoning is from the date of notice of the denial of the
first motion for reconsideration.34 With Trans-Asia having received the denial on July 14,
2010, its 15-day appeal period was until July 29, 2010. The filing of the petition for
review only on May 11, 2011 was too late.

Verily, an appeal should be taken in accordance with the manner and within the period
set by the law establishing the right to appeal. To allow Trans-Asia to transgress the
law would be to set at naught procedural rules that were generally mandatory and
inviolable. This is because appeal, being neither a constitutional right nor part of due
process, is a mere statutory privilege to be enjoyed by litigants who comply with the
law allowing the appeal.  Failure to comply will cause the loss of the privilege.
Moreover, procedural rules prescribing the time within which certain acts must be done
are indispensable to the prevention of needless delays and to the orderly and speedy
discharge of judicial business. Among such rules is that regulating the perfection of an
appeal, which is mandatory as well as jurisdictional. The consequence of the failure to
perfect an appeal within the limited time allowed is to preclude the appellate court from
acquiring jurisdiction over the case in order to review and revise the judgment that
meanwhile became final and immutable by operation of law.35 chanRoblesvirtualLawlibrary

Although procedural rules may be relaxed in the interest of substantial justice, there
are no reasons to relax them in Trans-Asia’s favor. As noted, the OP found the ground
for the second motion for reconsideration “clearly unmeritorious.” To ignore such
finding without justification is to unduly deprive the OP of its authority and autonomy to
enforce its own rules of procedure. On the other hand, Trans-Asia could have easily
avoided its dire situation by appealing within the period instead of rehashing its
already-discarded arguments in the OP. cralawred

II
Substantive Issues:
Yinlu’s mining patents constituted
vested rights that could not be disregarded
The finality and immutability of the decision of the OP are not the only reasons for
turning down Trans-Asia’s appeal. Trans-Asia’s cause also failed the tests of substance
and validity.

Yinlu claims that its mining patents, being evidenced by its TCTs that were registered
pursuant to Act No. 496 (Land Registration Act of 1902) in relation to the Philippine Bill
of 1902 (Act of Congress of July 1 , 1902), the governing law on the registration of
mineral patents, were valid, existing and indefeasible; that it was the absolute owner of
the lands the TCTs covered; that the TCTs were issued pursuant to mineral patents
based on Placer Claims36 named Busser, Superior, Bussamer and Rescue; that the TCTs
were presented to and confirmed by the DENR and the OP; that Section 21 of the
Philippine Bill of 1902 allowed citizens of the United States and of the Philippine Islands
to explore, occupy and purchase mineral lands; that after the exploration and claim of
the mineral land, the owner of the claim and of the mineral patents was entitled to all
the minerals found in the area subject of the claim as stated in Section 27 of the
Philippine Bill of 1902; that the person holding even a mere mineral claim was already
entitled to all the minerals found in such area; that, as such, the mineral claims that
had been patented and perfected by registration still enjoyed the same privilege of
exclusivity in exploiting the minerals within the patent; that aside from being entitled to
the minerals found within the mineral claim and patent, it was also entitled to the
exclusive possession of the land covered by the claim; that its mining patents are
property rights that the Government should not appropriate for itself or for others; that
its registered mineral patents, being valid and existing, could not be defeated by
adverse, open and notorious possession and prescription; that its substantive rights
over mineral claims perfected under the Philippine Bill of 1902 subsisted despite the
changes of the Philippine Constitution and of the mining laws; that the Constitution
could not impair vested rights; that Section 100 and Section 101 of PD No. 463 would
impair its vested rights under its mineral patents if said provisions were applied to it;
and that Section 99 of PD No. 463 expressly prohibited the application of Section 100
and Section 101 to vested rights.37
chanRoblesvirtualLawlibrary

Yinlu asserts that contrary to the claim of Trans-Asia, the titles issued to it were mining
patents, not homestead patents.38 It stresses that the TCTs from which it derived its
own TCTs were issued pursuant to Patents 15, 16, 17 and 18; that under the Philippine
Bill of 1902, there was no mineral patent separate from the original certificate of title
issued pursuant thereto; that the mineral patent applied for under the procedure
outlined in the Philippine Bill of 1902 resulted to an original certificate of title issued
under Act No. 496; that the beginning statements mentioned in Yinlu’s title stated
“pursuant to Patent No._____,________Placer Claim;” that as such, its mineral patents
were part of its actual titles; that Section 21 of the Philippine Bill of 1902 allowed the
titling of the land and the exploration of both the surface and the minerals beneath the
surface; and that its TCTs were already inclusive of the minerals located in the
properties by virtue of the Philippine Bill of 1902, and thus could not be separately sold
or mortgaged from each other.39
chanRoblesvirtualLawlibrary

The decision of the OP was actually unassailable in point of law and history.

During the period of Spanish colonization, the disposition and exploration of mineral
lands in the Philippines were governed by the Royal Decree of May 14,
1867,40 otherwise known as The Spanish Mining Law.41 The Regalian doctrine was
observed, to the effect that minerals belonged to the State wherever they could be
found, whether in public or private lands. During the American occupation, the
fundamental law on mining was incorporated in the Philippine Bill of 1902, whose
Section 2142 declared: That all valuable mineral deposits in public lands in the Philippine
Islands, both surveyed and unsurveyed, are hereby declared to be free and open to
exploration, occupation, and purchase, and the land in which they are found to
occupation and purchase, by citizens of the United States, or of said Islands. Its Section
27 provided that a holder of the mineral claim so located was entitled to all the
minerals that lie within his claim, but he could not mine outside the boundary lines of
his claim. Pursuant to the Philippine Bill of 1902, therefore, once a mining claim was
made or a mining patent was issued over a parcel of land in accordance with the
relative provisions of the Philippine Bill of 1902, such land was considered private
property and no longer part of the public domain. The claimant or patent holder was
the owner of both the surface of the land and of the minerals found underneath.

The term mining claim connotes a parcel of land containing a precious metal in its soil
or rock. It is usually used in mining jargon as synonymous with the term location,
which means the act of appropriating a mining claim on the public domain according to
the established law or rules.43 A mining patent pertains to a title granted by the
government for the said mining claim.

Under the 1935 Constitution, which took effect on November 15 1935, the alienation of
natural resources, with the exception of public agricultural land, was expressly
prohibited. The natural resources being referred therein included mineral lands of public
domain, but not mineral lands that at the time the 1935 Constitution took effect no
longer formed part of the public domain.

Consequently, such prohibition against the alienation of natural resources did not apply
to a mining claim or patent existing prior to November 15, 1935. Jurisprudence has
enlightened us on this point.

In McDaniel v. Apacible,44 the petitioner sought to prohibit the Secretary of Agriculture

and Natural Resources from leasing a parcel of petroleum land in San Narciso in
Province of Tayabas. He claimed that on June 7, 1916 he entered an unoccupied land in
San Narciso and located therein three petroleum mineral claims in accordance with the
Philippine Bill of 1902; that on July 15, 1916, he recorded the three mineral claims with
the mining office of the Municipality of Lucena through notices of location under the
names Maglihi No. 1, Maglihi No. 2, and Maglihi No. 3; that he had been in open and
continuous possession of the claims since June 7, 1916; that in 1918, he drilled five
wells on said claims and made discoveries of petroleum on them; that on June 18,
1921, respondent Juan Cuisia applied with respondent Galicano Apacible, as the
Secretary of Agriculture and Natural Resources, for the lease of a land whose
boundaries included his three claims; that he protested in writing to Secretary Apacible
the inclusion in the Cuisia lease application of his three mineral claims; that Secretary
Apacible denied his protest, and was about to grant the lease application by virtue of
Act No. 2932; that said law, in so far as it purported to declare open to lease lands
containing petroleum oil on which mineral claims had been validly located and held, and
upon which discoveries of petroleum oil had been made, was void and unconstitutional
for it deprived him of his property without due process of law and without
compensation; and that Secretary Apacible was without jurisdiction to lease to Cuisia
his mining claims. The Court granted the petition, ruling as follows: chanroblesvirtuallawlibrary

Mr. Lindlay, one of the highest authorities on Mining Law, has discussed extensively the
question now before us. (Lindlay on Mines, vol. I, sections 322, 539.)

The general rule is that a perfected, valid appropriation of public mineral

lands operates as a withdrawal of the tract from the body of the public domain, and so
long as such appropriation remains valid and subsisting, the land covered thereby is
deemed private property. A mining claim perfected under the law is property in the
highest sense, which may be sold and conveyed and will pass by descent. It has the
effect of a grant (patent) by the United States of the right of present and exclusive
possession of the lands located. And even though the locator may obtain a patent to
such lands, his patent adds but little to his security. (18 Ruling Case Law, p. 1152 and
cases cited.)

The owner of a perfected valid appropriation of public mineral lands is entitled to the
exclusive possession and enjoyment against everyone, including the Government itself.
Where there is a valid and perfected location of a mining claim, the area becomes
segregated from the public domain and the property of the locator.

It was said by the Supreme Court of the State of Oregon, "The Government itself
cannot abridge the rights of the miner to a perfected valid location of public mineral
land. The Government may not destroy the locator's right by withdrawing the land from
entry or placing it in a state of reservation." (Belk vs. Meagher, 104 U. S., 279; Sullivan
vs. Iron Silver Mining Co., 143 U. S., 431.)

A valid and subsisting location of mineral land, made and kept up in accordance with
the provisions of the statutes of the United States, has the effect of a grant by the
United States of the present and exclusive possession of the lands located, and this
exclusive right of possession and enjoyment continues during the entire life of the
location. There is no provision for, nor suggestion of, a prior termination thereof.
(Gwillim vs. Donnellan, 115 U. S., 45; Clipper Mining Co. vs. Eli Mining & Land Co., 194
U. S., 220.)

There is no pretense in the present case that the petitioner has not complied with all
the requirements of the law in making the location of the mineral placer claims in
question, or that the claims in question were ever abandoned or forfeited by him. The
respondents may claim, however, that inasmuch as a patent has not been issued to the
petitioner, he has acquired no property right in said mineral claims. But the Supreme
Court of the United States, in the cases of Union Oil Co, vs. Smith (249 U. S., 337), and
St. Louis Mining & Milling Co, vs. Montana Mining Co. (171 U. S., 650), held that even
without a patent, the possessory right of a locator after discovery of minerals upon the
claim is a property right in the fullest sense, unaffected by the fact that the paramount
title to the land is in the United States. There is no conflict in the rulings of the Court
upon that question. With one voice they affirm that when the right to a patent exists,
the full equitable title has passed to the purchaser or to the locator with all the benefits,
immunities, and burdens of ownership, and that no third party can acquire from the
Government any interest as against him. (Manuel vs. Wulff, 152 U. S., 504, and cases
cited.)
Even without a patent, the possessory right of a qualified locator after discovery of
minerals upon the claim is a property right in the fullest sense, unaffected by the fact
that the paramount title to the land is in the Government, and it is capable of transfer
by conveyance, inheritance, or devise. (Union Oil Co. vs. Smith, 249 U. S., 337; Forbes
vs. Jarcey, 94 U. 4S., 762; Belk vs. Meagher, 104 U. S., 279; Del Monte Mining Co. vs.
Last Chance Mining Co., 171 U. S., 55; Elver vs. Wood, 208 U. S., 226, 232.)

Actual and continuous occupation of a valid mining location, based upon discovery, is
not essential to the preservation of the possessory right. The right is lost only by
abandonment as by nonperformance of the annual labor required. (Union Oil Co. vs.
Smith, 249 U. S., 337; Farrell vs. Lockhart, 210 U. S., 142; Bradford vs. Morrison, 212
U. S., 389.)

The discovery of minerals in the ground by one who has a valid mineral location
perfects his claim and his location not only against third persons, but also against the
Government. A mining claim perfected under the law is property in the highest sense of
that term, which may be sold and conveyed, and will pass by descent, and is not
therefore subject to the disposal of the Government. (Belk vs. Meagher, 104 U. S., 279,
283; Sullivan vs. Iron Silver Mining Co., 143 U. S., 431; Consolidated Mutual Oil Co. vs.
United States, 245 Fed. Rep., 521; Van Ness vs. Rooney, 160 Cal., 131, 136, 137.)

The moment the locator discovered a valuable mineral deposit on the lands located,
and perfected his location in accordance with law, the power of the United States
Government to deprive him of the exclusive right to the possession and enjoyment of
the located claim was gone, the lands had become mineral lands and they were
exempted from lands that could be granted to any other person. The reservations of
public lands cannot be made so as to include prior mineral perfected locations; and, of
course, if a valid mining location is made upon public lands afterward included in a
reservation, such inclusion or reservation does not affect the validity of the former
location. By such location and perfection, the land located is segregated from the public
domain even as against the Government. (Union Oil Co. vs. Smith, 249 U. S., 337; Van
Ness vs. Rooney, 160 Cal., 131; 27 Cyc, 546.)

From all of the foregoing arguments and authorities we must conclude that, inasmuch
as the petitioner had located, held and perfected his location of the mineral lands in
question, and had actually discovered petroleum oil therein, he had acquired a property
right in said claims; that said Act No. 2932, which deprives him of such right, without
due process of law, is in conflict with section 3 of the Jones Law, and is therefore
unconstitutional and void. Therefore the demurrer herein is hereby overruled, and it is
hereby ordered and decreed that, unless the respondents answer the petition herein
within a period of five days from notice hereof, that a final judgment be entered,
granting the remedy prayed for in the petition. So ordered.45

In Gold Creek Mining Corporation v. Rodriguez, 46 the petitioner prayed that Eulogio
Rodriguez as the Secretary of Agriculture and Commerce, and Quirico Abadilla, as the
Director of the Bureau of Mines, be compelled to approve its application for patent on a
certain mining claim. It alleged that it owned the Nob Fraction mineral claim situated in
Itogon, Mountain Province, and located on public lands by C. L. O’Dowd in accordance
with the provisions of the Philippine Bill of 1902; that said claim was located on January
1, 1929, and was registered in the office of the mining recorder of Mountain Province on
January 7, 1929; that by itself and its predecessor-in-interest it had been in continuous
and exclusive possession of the claim from the date of location thereof; and that prior
to November 15, 1935, it filed an application for patent but both respondents failed and
refused to grant the application despite its having complied with all the requirements of
the law for the issuance of such patent. On the other hand, the respondents contended
that the petitioner was not entitled as a matter of right to a patent to said mineral claim
because the 1935 Constitution provided that “natural resources, with the exception of
public agricultural land, shall not be alienated.” The Court ordered the respondents to
dispose of the application for patent on its merits, unaffected by the prohibition against
the alienation of natural resources provided in Section 1, Article XII of the 1935
Constitution and in Commonwealth Act No. 137, explaining: chanroblesvirtuallawlibrary

This is one of several cases now pending in this court which call for an interpretation, a
determination of the meaning and scope, of section 1 of Article XII of the Constitution,
with reference to mining claims. The cases have been instituted as test cases, with a
view to determining the status, under the Constitution and the Mining Act
(Commonwealth Act No. 137), of the holders of unpatented mining claims which were
located under the provisions of the Act of Congress of July 1, 1902, as amended.

In view of the importance of the matter, we deem it conducive to the public interest to
meet squarely the fundamental question presented, disregarding for that purpose
certain discrepancies found in the pleadings filed in this case. This is in accord with the
view expressed by the Solicitor-General in his memorandum where he says that "the
statements of facts in both briefs of the petitioners may be accepted for the purpose of
the legal issues raised. We deny some of the allegations in the petitions and allege new
ones in our answers, but these discrepancies are not of such a nature or importance as
should necessitate introduction of evidence before the cases are submitted for decision.
From our view of the cases, these may be submitted on the facts averred in the
complaints, leaving out the difference between the allegations in the pleadings to be
adjusted or ironed out by the parties later, which, we are confident, can be
accomplished without much difficulty.

Section 1 of Article XII of the Constitution reads as follows:

“Section 1. All agricultural, timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and
other natural resources of the Philippines belong to the State, and their disposition,
exploitation, development, or utilization shall be limited to citizens of the Philippines, or
to corporations or associations at least sixty per centum  of the capital of which is
owned by such citizens, subject to any existing right, grant, lease, or concession at the
time of the inauguration of the Government established under this Constitution. Natural
resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of
the natural resources shall be granted for a period exceeding twenty-five years,
renewable for another twenty-five years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and the limit of the grant.”

The fundamental principle of constitutional construction is to give effect to the intent of

the framers of the organic law and of the people adopting it. The intention to which
force is to be given is that which is embodied and expressed in the constitutional
provisions themselves. It is clear that the foregoing constitutional provision prohibits
the alienation of natural resources, with the exception of public agricultural land. It
seems likewise clear that the term "natural resources," as used therein, includes
mineral lands of the public domain, but not mineral lands which at the time the
provision took effect no longer formed part of the public domain. The reason for this
conclusion is found in the terms of the provision itself. It first declares that all
agricultural, timber, and mineral lands of the public domain, etc., and other natural
resources of the Philippines, belong to the State. It then provides that "their disposition,
exploitation, development, or utilization shall be limited to citizens of the Philippines, or
to corporations or associations at least sixty per centum of the capital of which is owned
by such citizens, subject to any existing right, grant, lease, or concession at the time of
the inauguration of the Government established under this Constitution." Next comes
the prohibition against the alienation of natural resources.  This  prohibition  is directed 
against the  alienation  of  such

natural resources as were declared to be the property of the State. And as only
"agricultural, timber, and mineral lands of the public domain" were declared property of
the State, it is fair to conclude that mineral lands which at the time the constitutional
provision took effect no longer formed part of the public domain, do not come within
the prohibition.

This brings us to the inquiry of whether the mining claim involved in the present
proceeding formed part of the public domain on November 15, 1935, when the
provisions of Article XII of the Constitution became effective in accordance with section
6 of Article XV thereof. In deciding this point, it should be borne in mind that a
constitutional provision must be presumed to have been framed and adopted in the
light and understanding of prior and existing laws and with reference to them. "Courts
are bound to presume that the people adopting a constitution are familiar with the
previous and existing laws upon the subjects to which its provisions relate, and upon
which they express their judgment and opinion in its adoption." (Barry vs. Truax, 13 N.
D., 181; 99 N. W., 769; 65 L. R. A., 762.)

It is not disputed that the location of the mining claim under consideration was
perfected prior to November 15, 1935, when the Government of the Commonwealth
was inaugurated; and according to the laws existing at that time, as construed and
applied by this court in McDaniel vs. Apacible and Cuisia (42 Phil., 749), a valid location
of a mining claim segregated the area from the public domain. Said the court in that
case: "The moment the locator discovered a valuable mineral deposit on the lands
located, and perfected his location in accordance with law, the power of the United
States Government to deprive him of the exclusive right to the possession and
enjoyment of the located claim was gone, the lands had become mineral lands and they
were exempted from lands that could be granted to any other person. The reservations
of public lands cannot be made so as to include prior mineral perfected locations; and,
of course, if a valid mining location is made upon public lands afterward included in a
reservation, such inclusion or reservation does not affect the validity of the former
location. By such location and perfection, the land located is segregated from the public
domain even as against the Government. (Union Oil Co. vs. Smith, 249 U. S., 337; Van
Ness vs. Rooney, 160 Cal., 131; 27 Cyc., 546.)"
The legal effect of a valid location of a mining claim is not only to segregate the area
from the public domain, but to grant to the locator the beneficial ownership of the claim
and the right to a patent therefor upon compliance with the terms and conditions
prescribed by law. "Where there is a valid location of a mining claim, the area becomes
segregated from the public domain and the property of the locator." (St. Louis Mining &
Milling Co. vs. Montana Mining Co., 171 U. S., 650, 655; 43 Law. ed., 320, 322.) "When
a location of a mining claim is perfected it has the effect of a grant by the United States
of the right of present and exclusive possession, with the right to the exclusive
enjoyment of all the surface ground as well as of all the minerals within the lines of the
claim, except as limited by the extralateral rights of adjoining locators; and this is the
locator's right before as well as after the issuance of the patent. While a lode locator
acquires a vested property right by virtue of his location, made in compliance with the
mining laws, the fee remains in the government until patent issues” (18 R. C. L., 1152.)
In Noyes vs. Mantle (127 U. S., 348, 351; 32 Law. ed., 168, 170), the court said:

"There is no pretense in this case that the original locators did not comply-with all the
requirements of the 1aw in making the location of the Pay Streak Lode Mining claim, or
that the claim was ever abandoned or forfeited. They were the discoverers of the claim.
They marked its boundaries by stakes, so that they could be readily traced. They
posted the required notice, which was duly recorded in compliance with the regulations
of the district. They had thus done all that was necessary under the law for the
acquisition of an exclusive right to the possession and enjoyment of the ground. The
claim was thenceforth their property. They needed only a patent of the United States to
render their title perfect, and that they could obtain at any time upon proof what they
had done in locating the claim, and of subsequent expenditures to a specified amount in
developing it. Until the patent issued the government held the title in trust for the
locators or their vendees. The ground itself was not afterwards open to sale."

In a recent case decided by the Supreme Court of the United States, it was said:

"The rule is established by innumerable decisions of this court, and of state and lower
Federal courts, that when the location of a mining claim is perfected under the law, it
has the effect of a grant by the United States of the right of present and exclusive
possession. The claim is property in the fullest sense of that term; and may be sold,
transferred, mortgaged, and inherited without infringing any right or title of the United
States. The right of the owner is taxable by the state; and is 'real property,' subject to
the lien of a judgment recovered against the owner in a state or territorial court. (Belk
vs. Neagher, 104 U. S., 279, 283; 26 L. ed., 735, 737; 1 Mor. Min. Rep., 510; Manuel
vs. Wulff, 152 U. S., 505, 510, 511; 38 L. ed., 532-534; 14, Sup. Ct. Rep., 651; 18
Mor. Min. Rep., 85; Elder vs. Wood, 208 U. S., 226, 317 232; 52 L. ed., 464, 466; 28
Sup. Ct. Rep., 263; Bradford vs. Morrison, 212 U. S., 389; 53 L. ed., 564; 29 Sup. Ct.
Rep., 349.) The owner is not required to purchase the claim or secure patent from the
United States; but so long as he complies with the provisions of the mining laws, his
possessory right, for all practical purposes of ownership, is as good as though secured
by patent." (Wilbur vs. United States ex rel. Krushnic, 280 U. S., 306; 74 Law. ed.,
445.)

The Solicitor-General admits in his memorandum that the decision in the McDaniel case
is determinative, of the fundamental question involved in the instant case. But he
maintains "that this decision is based on a misapprehension of the authorities on which
the court relied," and that it "is not well founded and should be abandoned." We do not
deem it necessary to belabor this point. Whether well-founded or not, the decision in
that case was the law when section 1 of Article XII of the Constitution became
effective; and even if we were disposed to overrule that decision now, our action could
not affect rights already fixed under it.

Our conclusion is that, as the mining claim under consideration no longer formed part of
the public domain when the provisions of Article XII of the Constitution became
effective, it does not come within the prohibition against the alienation of natural
resources; and the petitioner has the right to a patent therefor upon compliance with
the terms and conditions prescribed by law.

It remains to consider whether mandamus is the proper remedy in this case. In Wilbur
vs. United States ex rel. Krushnic, supra, the Supreme Court of the United States held
that "mandamus will lie to compel the Secretary of the Interior to dispose of an
application for a patent for a mining claim on its merits, where his refusal to do so is
based on his misinterpretation of a statute." In the course of its decision the court said:
"While the decisions of this court exhibit a reluctance to direct a writ of mandamus
against an executive officer, they recognize the duty to do so by settled principles of
law in some cases. (Lane vs. Hoglund, 244 U. S., 174, 181; 61 L. ed., 1066, 1069; 37
Sup. Ct. Rep., 552; and case cited.) In Roberts vs. United States (176 U. S., 221, 231;
44 L. ed., 443, 447; 20 Sup. Ct. Rep., 376), referred to and quoted in the Hoglund
case, this court said:

" 'Every statute to some extent requires construction by the public officer whose duties
may be defined therein. Such officer must read the law, and he must therefore, in a
certain sense, construe it, in order to form a judgment from its language what duty he
is directed by the statute to perform. But that does not necessarily and in all cases
make the duty of the officer anything other than a purely ministerial one. If the law
direct him to perform an act in regard to which no discretion is committed to him, and
which, upon the facts existing, he is bound to perform, then that act is ministerial,
although depending upon a statute which requires, in some degree a construction of its
language by the officer. Unless this be so, the value of this writ is very greatly
impaired. Every executive officer whose duty is plainly devolved upon him by a statute
might refuse to perform it, and when his refusal is brought before the court he might
successfully plead that the performance of the duty involved the construction of a
statute by him, and therefore it was not ministerial, and the court would on that
account be powerless to give relief. Such a limitation of the powers of the court, we
think, would be most unfortunate, as it would relieve from judicial supervision all
executive officers in the performance of their duties, whenever they should plead that
the duty required of them arose upon the construction of a statute, no matter how plain
its language, nor how plainly they violated their duty in refusing to perform the act
required.' "

In the instant case, we are not justified, upon the state of the pleadings, to grant the
relief sought by the petitioner. Considering, however, that the refusal of the
respondents to act on the application for a patent on its merits was due to their
misinterpretation of certain constitutional and statutory provisions, following the
precedent established by the Supreme Court of the United States in Wilbur vs. United
States ex rel. Krushnic, supra, a writ of mandamus should issue directing the
respondents to dispose of the application for patent on its merits, unaffected by the
prohibition against the alienation of natural resources contained in section 1 of Article
XII of the Constitution and in Commonwealth Act No. 137. So ordered.47

The foregoing rulings were applied and cited in Salacot Mining Company v.
Rodriguez,48Republic v. Court of Appeals49 and Atok-Big Wedge Mining Co., Inc. v. Court
of Appeals.50 chanRoblesvirtualLawlibrary

Here, the records show that TCT Nos. 93, 94, 95, 96, 97 and 98 involved six parcels of
land with an area of 248.342 hectares situated in Barrio Larap and Santa Elena,
Municipality of Jose Panganiban, Camarines Norte.51 The TCTs were transferred to the
MBC and PCIB after PIMI’s properties were sold in the foreclosure sale conducted on
December 20, 1975.52 Consequently, new TCTs, namely: TCT Nos. 14565, 14566,
14567, 14568, 14569 and 14570, were issued to MBC and PCIB cancelling TCT Nos. 93,
94, 95, 96, 97 and 98.53 MBC and BDO, as registered owners of said lands,
subsequently sold the same to Yinlu by virtue of a Deed of Absolute Sale.54 Hence, TCT
Nos. 72336, 72337, 72338, 72339, 72340 and 72341 were issued to Yinlu as the new
registered owner.55 chanRoblesvirtualLawlibrary

It also appears that TCT Nos. 94, 95, 96 and 97 covered mining lands with an
aggregate area of 192 hectares. The lands were originally registered in 1925, and the
TCTs were issued to PIMI in 1930. These TCTs of PIMI corresponded to more than half
of the areas involved in Trans-Asia’s MPSA. However, the TCTs of PIMI constituted
mining patents and mining claims of the lands they covered. TCT No. 94 was issued
pursuant to Patent No. 15 under the Busser Placer Claim; TCT No. 95, Patent No. 16
under the Superior Placer Claim; TCT No. 96, Patent No. 17 under the Bussemer  Placer
Claim;  and TCT No. 97, Patent No. 18 under the Rescue Placer Claim. 56 Considering
that these TCTs were validly transferred to Yinlu by virtue of the deed of absolute sale,
and with the consequent issuance of TCT Nos. 72336, 72337, 72338 and 72339 in its
name, Yinlu was the owner and holder of the mining patents entitled not only to
whatever was on the surface but also to the minerals found underneath the surface.

The lands and minerals covered by Yinlu’s mining patents are private properties. The
Government, whether through the DENR or the MGB, could not alienate or dispose of
the lands or mineral through the MPSA granted to Trans-Asia or any other person or
entity. Yinlu had the exclusive right to explore, develop and utilize the minerals therein,
and it could legally transfer or assign such exclusive right. We uphold the rulings of the
DENR Secretary and the OP to exclude the disputed areas that had been established to
belong exclusively to Yinlu as registered owner to be taken out of the coverage of
Trans-Asia’s MPSA.

Still, Trans-Asia insists that Yinlu’s mining patents should no longer be recognized
because they were not registered pursuant to Section 100 and Section 101 of PD No.
463, which read: chanroblesvirtuallawlibrary

Section 100. Old Valid Mining Rights May Come Under This Decree. Holders of valid and
subsisting mining locations and other rights under other laws, irrespective of the areas
covered, may avail of the rights and privileges granted under this Decree by making the
necessary application therefor and approval thereof by the Director within a period of
two (2) years from the date of approval of this Decree.

Section 101. Recognition and Survey of Old Subsisting Mining Claims.  All mining grants
patents, locations, leases and permits subsisting at the time of the approval of this
Decree shall be recognized if registered pursuant to Section 100 hereof: Provided, That
Spanish Royal Grants and unpatented mining claims located and registered under the
Act of the United States Congress of July 1, 1902, as amended, otherwise known as the
"Philippine Bill", as shall be surveyed within one (1) year from the approval of this
Decree: Provided, further, That no such mining rights shall be recognized if there is
failure to comply with the fundamental requirements of the respective grants: And
provided, finally, That such grants, patents, locations, leases or permits as may be
recognized by the Director after proper investigation shall comply with the applicable
provisions of this Decree, more particularly with the annual work obligations, submittal
of reports, fiscal provisions and other obligations.

Trans-Asia submits that because MBC/BDO did not comply with the requirement for the
registration of the patents, Yinlu’s mining rights should now be deemed abandoned
because no title or right was passed to it. In that sense, Trans-Asia maintains that Yinlu
had no vested right.

We disagree with Trans-Asia.

Although Section 100 and Section 101 of PD No. 463 require registration and annual
work obligations, Section 99 of PD No. 463 nevertheless expressly provides that the
provisions of PD No. 463 shall not apply if their application will impair vested rights
under other mining laws, viz: chanroblesvirtuallawlibrary

Section 99. Non-impairment of Vested or Acquired Substantive Rights. Changes made

and new provisions and rules laid down by this Decree which may prejudice or impair
vested or acquired rights in accordance with order mining laws previously in force shall
have no retroactive effect. Provided, That the provisions of this Decree which are
procedural in nature shall prevail.

The concept of a vested right was discussed and applied in Ayog v. Cusi Jr. 57 Therein,
the Director of Lands awarded on January 21, 1953 to Biñan Development Co, Inc.
(BDCI) a parcel of land on the basis of its 1951 Sales Application. BDCI filed an
ejectment suit against the occupants of the land who had refused to vacate. In its
judgment, the trial court ordered the occupants to vacate the land. The judgment was
affirmed by the Court of Appeals and by this Court. BDCI then moved for the execution
of the trial court’s judgment, but the occupants opposed on the ground that the
adoption of the 1973 Constitution, which took effect on January 17, 1973, was a
supervening event that rendered it legally impossible to execute the trial court’s
judgment. They invoked the constitutional prohibition that “no private corporation or
association may hold alienable lands of the public domain except by lease not to exceed
one thousand hectares in the area.” The Court rejected the invocation, and ruled that
BDCI had a vested right in the land, to wit: chanroblesvirtuallawlibrary

We hold that the said constitutional prohibition has no retroactive application to the
sales application of Biñan Development Co., Inc. because it already acquired a vested
right to the land applied for at the time the 1973 Constitution took effect.
That vested right has to be respected. It could not be abrogated by the new
Constitution. Section 2, Article XIII of the 1935 Constitution allows private corporation
to purchase public lands not exceeding one thousand and twenty-four hectares.
Petitioners’ prohibition action is barred by the doctrine of vested rights in constitutional
law.

A right is vested when the right to enjoyment has become the property of some
particular person or persons as a present interest.’ (16 C.J.S. 1173).  It is “the privilege
to enjoy property legally vested, to enforce contracts, and enjoy the rights of property
conferred by existing law” (12 C.J. 955, Note 46, No. 6) or “some right or interest in
property which has become fixed and established and is no longer open to doubt or
controversy” (Downs vs. Blount, 170 Fed. 15, 20, cited in Balboa vs. Farrales, 51 Phil.
498, 502).

The due process clause prohibits the annihilation of vested rights.  ‘A state may not
impair vested rights by legislative enactment, by the enactment or by the subsequent
repeal of a municipal ordinance, or by a change in the constitution of the State, except
in a legitimate exercise of the police power’ (16 C.J.S. 1177-78).

It has been observed that, generally, the term “vested right” expresses the concept of
present fixed interest, which in right reason and natural justice should be protected
against arbitrary State action, or an innately  just an  imperative  right which an
enlightened  free  society,

sensitive to inherent and irrefragable individual rights, cannot deny (16 C.J.S. 1174,
Note 71, No. 5, citing Pennsylvania Greyhound Lines, Inc. vs. Rosenthal, 192 Atl. 2nd
587).58

In Republic v. Court of Appeals,59 we stated that mining rights acquired under the
Philippine Bill of 1902 and prior to the effectivity of the 1935 Constitution were vested
rights that could not be impaired even by the Government. Indeed, the mining patents
of Yinlu were issued pursuant to the Philippine Bill of 1902 and were subsisting prior to
the effectivity of the 1935 Constitution. Consequently, Yinlu and its predecessors-in-
interest had acquired vested rights in the disputed mineral lands that could not and
should not be impaired even in light of their past failure to comply with the requirement
of registration and annual work obligations.

Relevantly, we advert to the DENR’s finding that PIMI’s failure to register the patents in
1974 pursuant to PD No. 463 was excusable because of its suffering financial losses at
that time, which eventually led to the foreclosure of the mortgages on its assets by the
MBC and PCIB as its creditors.60 The failure of Yinlu’s predecessors-in-interest to
register and perform annual work obligations did not automatically mean that they had
already abandoned their mining rights, and that such rights had already lapsed. For
one, the DENR itself declared that it had not issued any specific order cancelling the
mining patents.61 Also, the tenets of due process required that Yinlu and its
predecessors-in-interest be given written notice of their non-compliance with PD No.
463 and the ample opportunity to comply. If they still failed to comply despite such
notice and opportunity, then written notice must further be given informing them of the
cancellation of their mining patents. In the absence of any showing that the DENR had
provided the written notice and opportunity to Yinlu and its predecessors-in-interest to
that effect, it would really be inequitable to consider them to have abandoned their
patents, or to consider the patents as having lapsed. Verily, as held
in McDaniel and Gold Creek, supra, a mining patent obtained under the Philippine Bill of
1902 was a protected private property. The protection should be basic and guaranteed,
for no less than Section 1, Article III of the 1987 Constitution decrees that no person
shall be deprived of property without due process of law.

Nonetheless, we deem it significant to remind that Yinlu has been directed by the DENR
to henceforth conduct its mining operations in accordance with Republic Act No. 7942
(Philippine Mining Act of 1995) and its implementing rules and regulations. chanrobleslaw

WHEREFORE, we REVERSE and SET ASIDE the decision promulgated on October 30,

2012 by the Court of Appeals; REINSTATE the decision issued on May 4, 2010 and
resolutions dated June 29, 2010 and March 31, 2011 by the Office of the President in
O.P. Case No. 09-L-638; and DIRECT the respondents to pay the costs of suit.

SO ORDERED. cralawlawlibrary